Title 85 W. Va. C.S.R.

Workers' Compensation Workers' Compensation

Series 01 Claims Management And Administration

W. Va. Code R. § 85-1-1 General

W. Va. Code R. § 85-1-2 Definitions

W. Va. Code R. § 85-1-3 Claimant's Report of Injury and Application for Compensation

W. Va. Code R. § 85-1-4 Employer's Report Injuries

W. Va. Code R. § 85-1-5 Special Rules for Temporary Total Disability Claims

W. Va. Code R. § 85-1-6 Special rules for Permanent Disability Claims

W. Va. Code R. § 85-1-7 Notice and Litigation

W. Va. Code R. § 85-1-8 Special Rules for Permanent Total Disability Claims

W. Va. Code R. § 85-1-9 Special Rules for Non-Awarded Partial Benefits

W. Va. Code R. § 85-1-10 Time Standards

W. Va. Code R. § 85-1-11 Child Support and Spousal Support Orders

W. Va. Code R. § 85-1-12 Overpayments

W. Va. Code R. § 85-1-13 Occupational Pneumoconiosis and Occupational Disease Claims

W. Va. Code R. § 85-1-14 Procedures for Suspension for Claimant Abuse

W. Va. Code R. § 85-1-15 Travel Expenses-Medical Examination and Treatment

W. Va. Code R. § 85-1-16 Complaints

W. Va. Code R. § 85-1-17 Expert Witness Appearances

W. Va. Code R. § 85-1-18 Implementation and Stay of Orders from the Office of Judges

W. Va. Code R. § 85-1-19 Miscellaneous Administrative Matters

W. Va. Code R. § 85-1-20 Claims Management And Administration

Preferred Drug List. # TITLE 85 EXEMPT LEGISLATIVE RULE WORKERS' COMPENSATION RULES OF THE WEST VIRGINIA INSURANCE COMMISSIONER OFFICE WEST VIRGINIA M 2:50 ## SERIES 1 SECRETARY OF STATE ## CLAIMS MANAGEMENT AND ADMINISTRATION ### §85-1-1. General.

1.1. Scope. -- This exempt legislative rule establishes the requirements and procedures to be followed by the Insurance Commissioner, private carriers, self-insured employers, thirdparty administrators, claimants, health care providers, vocational professionals, and others involved in the administration of claims.

1.2. Authority. -- W. Va. Code §§23-2C-22; 33-2-10(b); and 33-2-21(a). Pursuant to W. Va. Code §§23-2C-5(c)(2) and 33-2-10(b), workers' compensation rules proposed by the Insurance Commissioner and approved by the Industrial Council are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- October 9, 2009.

1.4. Effective Date. -- November 8, 2009. ### §85-1-2. Definitions.

As used in this exempt legislative rule, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

2.1. "Acted upon" means, but is not limited to, any one of the following: 1) received and processed; 2) contacted a claimant, employer, or medical provider in any fashion requesting more information; 3) reviewed and examined by medical personnel; 4) conducted a potential overpayment analysis; 5) cross-checked with other state agencies for relevant information; and 6) and other similar administrative steps which must be taken before a request can be ruled upon.

2.2. "Board of Review" means the workers' compensation board of review created pursuant to W. Va. Code §23-5-1 et seq.

2.3. "Decision" means any determination by a responsible party regarding the compensability of a claim, the award or denial of any type of benefit in a claim, or any other substantive request by a claimant in a claim.

2.4. "File" means:

2.4.a. If mailed, the date on which document being postmarked;

2.4.b. If faxed, the date on which fax is sent;

2.4.c. If emailed, the date on which email is sent to the email address for the recipient; and

2.4.d. If hand delivered, the date on which the document is delivered.

2.5. "Employer" means an employer within the meaning of W. Va. Code §23-2-1, et seq.

2.6. "Injury" and derivative words have the meaning ascribed to the term "injury" by W.

Va. Code §23-4-1.

2.7. "Commissioner" means the Insurance Commissioner of West Virginia or any designated third-party administrator of the Insurance Commissioner.

2.8. "Office of Judges" means the workers' compensation office of administrative law judges pursuant to W. Va. Code §23-5-1 et seq.

2.9. "Paid" means the time a check is deposited in the mail or presented in person to the claimant, claimant's attorney or anyone acting in his or her behalf.

2.10. "Private carrier" means an insurer authorized by the Insurance Commissioner to provide workers' compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code and any third-party administrator designated by the private carrier to adjust West Virginia workers' compensation claims.

2.11. "Receipt" means:

2.11.a. If mailed or hand delivered, the date on which the document is delivered into the possession of the responsible party;

2.11.b. If emailed, the date on which the document is received in the email inbox of the responsible party; or

2.11.c. If faxed, the date on which the document is received in the fax machine of the responsible party.

2.12. "Responsible party" means the Insurance Commissioner, private carrier or selfinsured employer, whichever is applicable.

2.13. "Self-insured employer" means an employer who is eligible and has been granted self-insured status pursuant to the provisions of W. Va. Code §23-2-9 and the rules promulgated thereunder, and any third-party administrator designated by the self-insured employer to adjust West Virginia workers' compensation claims.

2.14. "West Virginia workers' compensation coverage" means workers' compensation coverage which provides the employees of an insured employer workers' compensation benefits consistent with chapter twenty-three of the West Virginia Code and the rules promulgated thereunder. ### §85-1-3. Claimant's Report of Injury and Application for Compensation. #### 3.1. General.

Immediately after sustaining an occupational injury, a claimant should 1) seek necessary medical care; 2) immediately on the occurrence of the injury or as soon as practicable thereafter give or cause to be given to the employer or any of the employer's agents a written notice of the occurrence of the injury; and 3) file a workers' compensation claim or request that one be filed on his or her behalf. Failure to immediately give notice to the employer of the injury weighs against a finding of compensability in the weighing of the evidence mandated by W. Va. Code

§23-4-1g and dilutes the credibility and reliability of the claim. Notice provided to the employer within two (2) working days of the injury shall be deemed immediate notice: Provided, That under no circumstances shall the fact that notice of an occupational injury was provided by the claimant later than two (2) working days from the time of the injury be the sole basis for denial of a claim. Enforcement of an employer's personnel policy requiring that a claimant report an injury immediately is not a discriminatory practice under chapter twenty-three of the West Virginia Code. #### 3.2. Benefit rate calculation; wage information.

It is the joint responsibility of the claimant and the employer to ensure that the correct wage information is provided to the Insurance Commissioner or private carrier so that the correct benefit rate can be paid the claimant. If the responsible party receives inaccurate wage information, the responsible party will, upon receipt of accurate wage information, adjust prospectively the benefit rate. The submission of inaccurate wage information by the employer or the receipt of benefits based on inaccurate wage information by the claimant may serve as evidence of abuse or fraud under the applicable provisions of the West Virginia Code. ### §85-1-4. Employer's Report of Injuries.

The claimant's employer shall report to the private carrier every injury sustained by any person in its employ within five (5) days of the employer's receipt of the notice of an employee's desire to file a claim. ### §85-1-5. Special Rules for Temporary Total Disability Claims.

5.1. To qualify for temporary total disability benefits, the claimant must be unable to work as a result of the compensable injury more than three (3) consecutive calendar days following the date of injury before benefits become payable. To receive temporary total disability benefits for the first three (3) days of disability, the claimant must be unable to work as a result of the compensable injury more than seven (7) consecutive calendar days following the date of injury.

5.2. If an individual retires, as long as the individual remains retired, he or she is disqualified from receiving temporary total disability indemnity benefits as a result of an injury received from the place of employment from which he or she retired, unless the application for benefits was received prior to his or her retirement. An individual who has retired is also barred from reopening for temporary total disability indemnity benefits an earlier claim filed in connection with an injury received at the place of employment from which he or she retired.

This section does not preclude payments of benefits otherwise due a claimant if the retiree has returned to employment and suffers a compensable injury or payment of benefits if the compensable injury causes the individual to retire.

5.3. If a period of disability includes a reasonably ascertainable period of time during which the claimant would not have been performing work for any employer, then temporary total disability indemnity benefits shall not be paid during that period. This section does not apply to periods of time caused by a reduction in force, lay-off, or time-off provided in connection with an employee benefit. ### §85-1-6. Special Rules for Permanent Partial Disability Claims.

[RESERVED] #### §85-1-7. Notice and Litigation.

7.1. In all workers' compensation claims, the parties shall be limited to: (1) the claimant or the claimant's dependants; (2) the employer; and (3), in claims involving funds created by

article two-c, chapter twenty-three of the West Virginia Code, the Insurance Commissioner.

7.2. Upon the making of any decision, the responsible party shall send all parties a written notice of the decision, setting forth the decision and the basis thereof, and informing the claimant or claimant's dependants of the right to protest the decision by filing a protest with the Office of Judges within sixty (60) days of the receipt of the decision.

7.3. In claims in which there was insurance coverage on the date of injury or last exposure, the private carrier providing coverage has sole authority to act on behalf of the employer in the claim, including, but not limited to, the ability to make claims decisions, appoint counsel for defense of the claim and make determinations regarding litigation strategy. An insured employer generally may not independently protest a decision issued by its carrier.

However, in order to place certain issues into litigation, the employer's right to protest a decision issued by its carrier exists in the following limited circumstances:

7.3.a. Decisions incorporating findings made by the Occupational Pneumoconiosis Board; and

7.3.b. Decisions entered pursuant to W. Va. Code §23-4-7a(c)(1).

In the circumstances set forth in subdivisions a. and b. of this subsection, the employer's protest shall be subject to the carrier's sole authority to act on the employer's behalf in the litigation of the claim. #### §85-1-8. Special Rules for Permanent Total Disability Claims.

[RESERVED] ###### §85-1-9. Special Rules for Non-Awarded Partial Benefits.

9.1. Non-awarded partial disability benefits pursuant to W. Va. Code §23-4-7a are payable only if the preponderance of the evidence indicates that a permanent impairment exists.

9.2. Non-awarded partial disability benefits are not payable in a claim that has been reopened only for temporary total disability benefits if a permanent partial disability award was previously made in the claim.

9.3. Non-awarded partial disability benefits paid prior to entry of the permanent disability award are to be deducted from the permanent partial disability award when it is granted. If the non-awarded partial disability benefits exceed the amount of the award, the claimant is not entitled to any further benefits from the award. The excess is considered to be an overpayment and may be collected by the responsible party pursuant to section 12. of this rule.

9.4. The responsible party may cease paying non-awarded partial disability benefits if the responsible party concludes that the amount of non-awarded partial disability benefits already paid will likely exceed the expected partial disability award and may, as soon as practicable thereafter, enter a permanent partial disability award based on the most current information available and the guidelines set forth in W. Va. Code St. R. §85-20-1 et seq., if applicable.

9.5. If the claimant begins to receive rehabilitation benefits, non-awarded partial disability benefits shall not be paid until the rehabilitation process is completed.

9.6. Non-awarded partial disability benefits shall be immediately suspended if the claimant fails, without good cause, to present for an examination or rating. If suspended with good cause, benefits can be reinstated, without back pay, once the claimant presents for the examination or rating.

9.7. Non-awarded partial disability benefits are paid at the same rate as the permanent partial disability rate. ###### §85-1-10. Time Standards.

10.1. Injury and occupational disease claims. -- The responsible party shall rule on claims based upon injuries and occupational diseases other than occupational pneumoconiosis that are properly executed and filed on prescribed forms with the responsible party within fifteen (15) working days from the receipt of all required information by the responsible party. The responsible party shall consider all information and proof properly submitted in connection with each claim. Whenever a claim has not been adequately or properly developed for consideration, the responsible party may require the production of additional evidence. The fifteen (15) working days to rule on the claim shall be tolled during this evidence gathering process.

10.2. Occupational Pneumoconiosis claims. -- The responsible party shall enter nonmedical decisions in occupational pneumoconiosis claims within ninety (90) days from the date the responsible party receives properly executed, prescribed forms. The responsible party shall consider all information and proof properly submitted in connection with each claim. Whenever the responsible party is of the opinion that a claim has not been adequately or properly developed for consideration, it may require the production of additional evidence. The ninety (90) days shall be tolled for no more than thirty (30) additional days during this evidence gathering process.

10.3. Medical treatment, medications, appliances, devices and supplies. -- The responsible party shall act upon an injured worker's request for authorization of medical treatment, medications, appliances, devices and supplies within fifteen (15) working days from the date the request was received by the responsible party.

10.4. Medical evaluations.

10.4.a. The responsible party shall refer claimants to physicians for examinations and evaluations as required by W. Va. Code §23-4-7a within twenty (20) days of the end of the one hundred twenty (120) day period of temporary total disability: Provided, That if the period of expected temporary total disability exceeds one hundred twenty (120) days, the responsible party shall make the referral within twenty (20) days of the end of the expected period of disability.

10.4.b. Examinations and evaluations to be performed by the Occupational Pneumoconiosis Board shall be scheduled and notice of the scheduling shall be transmitted to the parties within sixty (60) days after issuance of a non-medical decision directing referral to the Board. ###### 10.5. Permanent disability decisions.

10.5.a. The responsible party shall act on a permanent disability evaluation report received from a physician to whom the responsible party referred a claimant in a claim for injuries and occupational diseases other than occupational pneumoconiosis within thirty (30) working days of receipt by the responsible party of the report.

10.5.b. The responsible party shall make a referral of a claimant to a physician for examination and evaluation in response to a request by or on behalf of the claimant for consideration of a permanent disability award in a claim for injuries and occupational diseases other than occupational pneumoconiosis within thirty (30) working days from the date the request was received by the responsible party.

10.5.c. Permanent partial disability awards may be paid, at the discretion of the responsible party, either by lump sum or in installments consistent with applicable law. Payment of permanent partial awards shall commence within fifteen (15) working days of the decision granting the award.

10.5.d. Findings of the Occupational Pneumoconiosis Board shall be transmitted to the parties within thirty (30) working days after the date of examination by the Board. ###### 10.6. Application for reopening.

Applications for reopening of claims for temporary or permanent disability benefits shall be ruled upon by the responsible party within thirty (30) days from the date of receipt of the application by the responsible party. The responsible party shall consider all information and proof properly submitted in connection with the application. Whenever a claim has not been adequately or properly developed for consideration, the responsible party may require the production of additional evidence. The thirty (30) days to rule on the claim shall be tolled during this evidence gathering process. ###### 10.7. Orders.

A responsible party shall comply with all orders of the Office of Judges and the Board of Review and all mandates of the West Virginia Supreme Court of Appeals within thirty (30) days after the date of receipt, unless the responsible party is required to act sooner under the terms of the order or mandate or the order or mandate is subject to a lawfully ordered stay. #### §85-1-11. Child Support and Spousal Support Orders.

11.1. W. Va. Code §23-4-18 allows child and/or spousal support payments to be withheld from a claimant's compensation and sent to the Bureau for Child Support Enforcement.

The term "compensation" refers to temporary total disability benefits, temporary partial rehabilitation benefits, non-awarded partial benefits, permanent partial disability benefits and permanent total disability benefits only.

11.2. The amounts to be withheld by the responsible party from a claimant's compensation are the amounts which are set out in the withholding notice issued pursuant to the West Virginia Domestic Relations Act.

11.3. When an award of compensation is for permanent partial or non-awarded partial benefits, the responsible party shall withhold 100% of those benefits to collect payment of child and/or spousal support benefits.

11.4. When compensation is for temporary total, temporary partial, rehabilitation temporary total, permanent total, or dependent benefits, the responsible party may only withhold the amount or amounts specified on the withholding notice, subject to the limitations set out in Table la. #### §85-1-12. Overpayments.

12.1. Overpayments include any monies received from, or paid on a claimant's behalf by, the responsible party to which it is subsequently determined by the responsible party that the injured worker was not entitled. Overpayment may include, but shall not be limited to, the payment of temporary total disability benefits, permanent partial disability benefits, permanent total disability benefits, non-awarded partial disability benefits, temporary total rehabilitation benefits, temporary partial rehabilitation benefits, dependents benefits, fatal (104 week) benefits, travel reimbursement, and medical benefits.

12.2. The responsible party may collect overpayments to claimants by withholding future disability benefits payable to the claimant or the worker's dependents in the same claim or other claims which are pending with the same responsible party to whom the overpayment is due. The overpayment specifically can be withheld from temporary total disability benefits, permanent partial disability benefits, permanent total disability benefits, non-awarded partial disability benefits, temporary total rehabilitation benefits, temporary partial rehabilitation benefits, and travel reimbursement.

12.3. Collection of overpayments from temporary total disability benefits, permanent total disability benefits, temporary total rehabilitation benefits and temporary partial rehabilitation benefits is limited to thirty percent (30%) of the periodic benefit amount (i.e. weekly, bi-weekly, monthly, etc.): Provided, That if the overpayment was based upon fraud, abuse or mistake, caused in whole or in part, by the claimant or his or her agent, then the amount of the overpayment may be recovered in full by withholding 100% of the periodic benefit amount until the overpayment is recaptured.

12.4. Collection of overpayments from travel reimbursement, permanent partial disability benefits and non-awarded partial disability benefits are not limited and may be withheld in full until the overpayment is satisfied. #### §85-1-13. Occupational Pneumoconiosis and Occupational Disease Claims.

13.1. In any claim involving an occupational disease, other than occupational pneumoconiosis, resulting from inhalation of minute particles of dust over a period of time in the course of and resulting from employment: (1) which is filed as an occupational disease claim (as opposed to being filed as an occupational pneumoconiosis claim); and (2) in which a permanent disability determination is required, the claim shall be referred by the responsible party to the Occupational Pneumoconiosis Board for a determination of whole body medical impairment:

Provided, That this subsection in no event affects the applicability of benefits or any other procedures available under the West Virginia Code for occupational disease claims other than occupational pneumoconiosis claims. In the claims described in this subsection, the Occupational Pneumoconiosis Board's findings and conclusions regarding whole body medical impairment have the same legal force and effect as any other findings and conclusions issued by the Board: Provided, That in such claims, the jurisdiction of the Occupational Pneumoconiosis Board is limited solely to the determination of whole body medical impairment.

13.2. Carpal tunnel and all other nerve entrapment syndromes of the upper extremity shall be filed as occupational disease claims unless the syndrome is a secondary diagnosis to an otherwise compensable injury.

13.3. The responsible party shall deny an occupational disease claim based on the opinion of a psychologist. Psychologists are not treating physicians and are not permitted to certify occupational disease disability. #### §85-1-14. Procedures for Suspension for Claimant Abuse.

14.1. When evidence is obtained justifying a finding that a claimant has engaged or is engaging in abuse, including, but not limited to, engaging in physical activities inconsistent with his or her compensable workers' compensation injury, or when evidence is obtained establishing a failure to undergo examinations or needed treatment, the responsible party will suspend the claimant's temporary total disability benefits.

14.2. Abuse may also include working at an unreported job while drawing temporary total disability benefits, making false or misleading statements to the responsible party or a health care provider for the purpose of securing any benefit, and altering, falsifying, destroying, or concealing workers' compensation related records.

14.3. Any claimant found to be engaging in abuse or who fails to undergo examinations or needed treatment shall receive a notice of benefit suspension. This notice is not protestable.

The claimant has thirty (30) days to submit evidence justifying the reinstatement of benefits. If justification is not established, then the claimant will receive notice that the claim has been closed for temporary total disability payments. This notice is protestable. If justification is established, benefits will be reinstated with back benefits awarded.

14.4. In claims pending prior to approval of a managed health care plan, the claimant's failure to select a treating physician from an approved managed health care plan within sixty (60) days of notification to do so will result in a suspension of medical and indemnity benefits until the claimant's selection is made, unless the claimant is eligible to opt out of the managed care plan network. ### §85-1-15. Travel Expenses-Medical Examination and Treatment. #### 15.1. General.

Claimants are entitled to reasonable travel, meals and lodging expenses actually incurred in connection with an authorized medical examination or treatment. In determining the reasonableness of such expenses, the responsible party shall utilize the travel regulations for State employees as a guide, unless specific provisions to the contrary are otherwise contained herein.

15.2. For purposes of this rule, authorized medical examination or treatment includes medical examination or treatment provided by the claimant's authorized treating physician. If a claimant is required to travel in a personal vehicle for medical examinations or treatment, the mileage reimbursement rate provided for in the West Virginia Department of Administration's Purchasing Division Travel Rules as authorized by W. Va. Code §12-3-11 shall apply. For purposes of reimbursement rates pursuant to this subsection, all examinations or treatment provided to the claimant shall be considered to have been authorized on the date of the examination or treatment, regardless of whether the treatment was provided by the claimant's authorized treating physician or whether prior authorization was required. The reimbursement rate shall be the rate in effect on the date of the examination or treatment.

15.3. Mileage reimbursement as described in subsection 15.2. of this section shall be determined based upon the shortest practicable route between the claimant's residence and the provider.

15.4. A responsible party is not required to reimburse a claimant for travel expenses more frequently than once every three (3) months, unless:

15.4.a. An amount in excess of $100 in total reimbursement owed is involved; or

15.4.b. Action is taken to administratively close the claim.

15.5. Physical limitations.

Where a medical vendor certifies that a claimant, because of the state of his or her health, requires special travel arrangements in order to report for an authorized examination, the claimant shall be reimbursed for the cost of such arrangements.

15.6. Claimant's residence.

The responsible party shall arrange for examination as near as practicable to the claimant's residence. If the claimant changes his residence after his or her date of injury to a location outside of West Virginia or to a location substantially further from the state than the residence on the date of injury, the following limitations shall be observed:

15.6.a. Where the change of residence is necessitated by reason of health or financial hardship, as determined by the responsible party upon a proper showing of such reasons, the responsible party shall, in writing, endorse the change of residence and direct payment of meal and lodging expenses in the following manner:

15.6.a.1. Where the distance between the residence and the situs of the examination is less than four hundred (400) miles, meal and lodging expenses are payable as provided in subsections 15.1. and 15.2. of this section;

15.6.a.2. Where the distance between the residence and the situs of the examination is greater than four hundred (400) miles, expenses actually incurred en route shall be payable, up to the cost of round trip air fare, economy class, between the closest airports offering scheduled commercial passenger service, as of the date the examination was scheduled;

15.6.a.3. Where the claimant objects to any decision or finding, and the employer does not object thereto, and the claimant is subsequently directed to report for examination upon request of the employer, the claimant is entitled to reimbursement of expenses from point of entry into West Virginia;

15.6.b. Where the claimant's change of residence is not necessitated by reason of health or financial hardship, expenses are payable only from point of entry into West Virginia. ### §85-1-16. Complaints.

Upon receiving any inquiry from the Insurance Commissioner regarding a complaint filed with the Commissioner, a private carrier or self-insured employer shall, within fifteen (15) working days of the date appearing on the inquiry, furnish the Commissioner with a complete written response. A "complete written response" addresses all issues raised by the complainant or the Commissioner and includes copies of any documentation requested. This subsection is not intended to permit delay in responding to inquiries by the Commissioner or the Commissioner's staff in conjunction with a scheduled examination. ### §85-1-17. Expert Witness Appearances.

17.1. An authorized treating physician, or an authorized consulting physician acting upon referral from an authorized treating physician, appearing at a hearing to give testimony regarding an examination of a claimant will be paid a fee by the responsible party commensurate with the service rendered for such appearance and testimony, not to exceed $100 per quarter hour.

17.2. All other expert witness appearance fees, including, but not limited to, any physician other than those physicians mentioned in subsection 17.1. of this section, medical vendors, rehabilitation providers, physical therapists or vocational specialists, shall be paid for by the party wishing to examine or cross-examine the expert witness at an amount agreed to by the parties based upon usual and customary rate for the profession involved, not to exceed $100 per quarter hour. If the expert witness demands an amount in excess of $100 per quarter hour to appear, it is the sole responsibility of the party who has retained the services of the expert or submitted a report or records of the expert as evidence in the case to pay for the difference. ### §85-1-18. Implementation and Stay of Orders from the Office of Judges.

18.1. The responsible party may move for stay of any order entered by the Office of Judges for the payment of indemnity benefits, or which will necessarily require or result in the payment of such benefits, including, but not limited to, an order which finds a claim to be compensable, by filing a motion with either the Administrative Law Judge who entered the order or with the Board of Review.

18.2. A motion as described in subsection 18.1. of this section filed with the Office of Judges must be filed within ten (10) days of the date of entry of such order. A motion as described in subsection 18.1. of this section filed with the Board of Review must be filed contemporaneously with the notice for appeal. Any motion that is not timely filed in accordance with this subsection shall be dismissed with prejudice. In either case, the claimant may file a response to the motion within ten (10) days of the date on which the motion was filed, and the Office of Judges or Board of Review, whichever is applicable, shall enter an order granting or denying the motion within the ten (10) days from the end of the response period.

18.3. Any motion as described in subsection 18.1. of this section must include the following minimum content: (1) A statement of the reasons the stay is being sought; and (2) a statement of the grounds for the underlying appeal. Failure to include the minimum content described in this section is grounds for summary denial of the motion.

18.4. Any order granting a motion described in subsection 18.1. of this section shall expressly limit the stay to temporary total or permanent partial indemnity benefits to be paid in the claim as a result of the underlying Office of Judges order. No order granting a motion as described in subsection 18.1. of this section shall stay any medical, rehabilitation or permanent total disability benefits.

18.5. Any order granting a motion described in subsection 18.1. of this section by the Office of Judges shall expressly limit the duration of the stay to the expiration of the jurisdictional time limit for the filing of an appeal of the underlying order, or to the entry of a decision by the Board of Review if an appeal is filed. Any order granting a motion described in subsection 18.1. of this section by the Board of Review shall expressly limit the duration of the stay to the entry of a decision by the Board of Review of the underlying appeal: Provided, That if the Board of Review enters a decision remanding a case to the Office of Judges for further proceedings, any stay granted by the Office of Judges or Board of Review shall remain in effect until the Office of Judges enters a new order on the issue which was remanded, at which time the stay will be lifted. ### §85-1-19. Miscellaneous Administrative Matters.

If mail sent by the responsible party to a claimant, an employer, a vendor or any other party to a claim is returned due to an incorrect address, a reasonable effort will be made to determine the correct address. If after reasonable effort and due diligence a correct address cannot be located, the responsible party shall cease mailing correspondence to the party until such time as a correct address is provided. ### §85-1-20. Preferred Drug List.

20.1. In accordance with the provisions of the Workers' Compensation Act [23-4- 3(a)(3)] that require pharmacists filling a prescription for medication for a workers' compensation claimant to dispense a generic brand of the prescribed medication if the generic brand exists, the responsible party may establish a Preferred Drug List (PDL) for the purposes of:

20.1.a. Improving the quality of care of claimants by utilizing a PDL of generics and brand medications in the absence of generics;

20.1.b. Affecting cost savings in the provision of health care services by determining what is reasonably required; and

20.1.c. Optimizing pharmaceutical care and cost effectiveness.

TABLE 1a Family Arrears Percentage Not supporting another family Less than 12 weeks old Maximum of 50% Not supporting another family Greater than 12 weeks old Maximum of 55% Supporting another family, even just a spouse Less than 12 weeks old Maximum of 40% Supporting another family, even just a spouse Greater than 12 weeks old Maximum of 45% # PUBLIC HEARING JULY 30, 2009 # OFFICES OF THE WEST VIRGINIA INSURANCE COMMISSIONER WORKERS' COMPENSATION INDUSTRIAL COUNCIL ## TITLE 85, SERIES 1 CLAIMS MANAGEMENT AND ADMINISTRATION Transcript of the Public Hearing held on Thursday, July 30, 2009, at 3:00 p.m., Offices of the West Virginia Insurance Commissioner, 1124 Smith Street, Room 400, Charleston, West Virginia.

Industrial Council Members Present:

Bill Dean, Chairman Kent Hartsog Dan Marshall Walter Pellish (via telephone)

Chairman Bill Dean: This is Title 85, Series 1, Claims Management and Administration. Ryan, do you have anything you want to say before we get started?

Ryan Sims (Associate Counsel, OIC): No. We did not receive any written comments on Title 85, Series 1.

Chairman Dean: Does anybody from the general public have anything they would like to comment on regarding Title 85, Series 1? We will close the public hearing. [There were no comments'.] ## Industrial Council Meeting PUBLIC HEARING Title 85, Series 1 CLAIMS MANAGEMENT AND ADMINISTRATION Offices of the West Virginia Insurance Commissioner July 30, 2009 Name Address Telephone Number Group Affiliation Do you desire to address the Council?

Agenda item to which you desire to speak )

Series 02 Workers' Compensation Claims Index

W. Va. Code R. § 85-2-1 General

1.1. Scope. -- This rule governs the administration of the West Virginia Workers’ Compensation Claims Index established pursuant to W. Va. Code §23-2C-5(c)(8).

1.2. Authority. -- W. Va. Code §§23-2C-22; 33-2-10(b); and 33-2-21(a). Pursuant to W. Va. Code §§23-2C-5(c)(2) and 33-2-10(b), workers’ compensation rules proposed by the Insurance Commissioner and approved by the Industrial Council are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- July 18, 2008.

1.4. Effective Date. -- August 17, 2008.

W. Va. Code R. § 85-2-2 Purpose

The purpose of this rule is to establish guidelines to govern the administration of the Workers’ Compensation Claims Index pursuant to W. Va. Code §23-2C-5(c)(8).

W. Va. Code R. § 85-2-3 Definitions

As used in this exempt legislative rule, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

3.1. “Commissioner” means the Insurance Commissioner of West Virginia as provided in W. Va. Code §33-2-1, or any designated third-party administrator of the Insurance Commissioner.

3.2. “EDI” is the Electronic Data Interchange Project of the International Association of Industrial Accident Boards and Commissions (“IAIABC”), Release 3 standards.

3.3. “Industrial Council” means the Industrial Council created pursuant to W. Va. Code §23-2C-5.

3.4. “Private carrier” means any insurer authorized by the Commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code and any third-party administrator designated by the private carrier to adjust West Virginia workers’ compensation claims.

3.5. “Self-insured employer” means an employer who is eligible and has been granted self-insured status pursuant to the provisions of W. Va. Code §23-2-9 and the rules promulgated thereunder, and any third-party administrator designated by the self-insured employer to adjust West Virginia workers’ compensation claims.

3.6. “Special Funds,” mean all workers’ compensation related funds created in W. Va. Code §23-2C-1 et seq., and administered by the Commissioner, which are responsible for paying certain West Virginia workers’ compensation benefits, and any third-party administrator designated by the Commissioner to adjust West Virginia workers’ compensation claims on behalf of such funds.

3.7. “WV OIC EDI IG” is the West Virginia Offices of the Insurance Commissioner’s EDI Implementation Guide.

3.8. “Workers’ Compensation Claims Index” or “claims index” is a method for indexing claims of injured workers filing for West Virginia workers’ compensation benefits that will make information concerning West Virginia’s injured workers available to insurers or self-insured employers, as required by the Industrial Council pursuant to W. Va. Code §23-2C-5(c)(8).

3.9. “West Virginia workers’ compensation” means workers’ compensation coverage which provides workers’ compensation benefits to injured employees consistent with chapter twenty-three of the West Virginia Code and the rules promulgated thereunder.

W. Va. Code R. § 85-2-4 Claims Index

4.1. Consistent with the provisions of W. Va. Code §23-2C-5(c)(8), a West Virginia Workers’ Compensation Claims Index shall be maintained in the form of an electronic database and administered by staff of the Commissioner, utilizing selected data reported by private carriers, special funds and self-insured employers to the Commissioner through EDI. The purpose of the claims index is to make basic information regarding claims filed by injured workers available to private carriers, self-insured employers and the Commissioner.

4.2. The claims index shall contain basic information on all West Virginia workers’ compensation claims reported consistent with this rule, including the following minimum requirements, based upon the best information available to the private carrier, self-insured employer or Commissioner:

a. Claim number;

b. Accident date/Date of injury or last exposure;

c. Claimant’s full name;

d. Claimant’s social security number;

e. Name, address and phone number of a contact person for the private carrier, self-insured employer or third-party administrator, as applicable;

f. Body part that is the subject of the claim;

g. The percentage of permanent partial disability award granted in the claim; and h. Any other fields of information as the Commissioner deems necessary.

4.3. The required fields for the claims index shall be established by the Commissioner with advice and consent of the Industrial Council consistent with an objective of providing sufficient basic information regarding West Virginia workers’ compensation claims to private carriers, self-insured employers and the Commissioner without creating unduly burdensome reporting requirements.

W. Va. Code R. § 85-2-5 Access to Claims Index

5.1. Upon application to the Commissioner on forms prescribed by the Commissioner, a private carrier, self-insured employer or any designated agent thereof, including, but not limited to, an attorney for the private carrier or self-insured employer, may be granted access to the claims index. Such access shall be permitted in a method and manner prescribed by the Commissioner.

5.2. Any information in the claims index may be used only for the purposes of administering and defending the workers’ compensation claim upon which the request was based in a manner consistent with chapter twenty-three of the West Virginia Code and the rules promulgated thereunder.

5.3. A claimant, an attorney representing a claimant or a healthcare provider duly authorized by the claimant may request a list of the claimant’s prior claims available from the claims index. Such request shall be permitted in a method, manner and form created by the Commissioner.

W. Va. Code R. § 85-2-6 Duty to Timely Report Claims Data

6.1. All private carriers, special funds and self-insured employers shall report claims data to the Commissioner consistent with the provisions of the WV OIC EDI IG.

6.2. Failure of an insurer or self-insured employer to timely report data to the Commissioner as required in subsection 6.1. of this section may subject the private carrier or self-insured employer to a fine not to exceed $500 per occurrence of untimely reporting.

85CSR2

85CSR2

Series 04 Attorney's Fees

W. Va. Code R. § 85-04 Attorney's Fees

TITLE 85

EXEMPT LEGISLATIVE RULE

WORKERS' COMPENSATION COMMISSION

SERIES 4

ATTORNEY(S FEES

(85-4-1. General.

1.1. Scope. -- This exempt legislative rule relates to compliance with orders of the Office of Judges directing private carriers to attorney fees and costs with regard to certain types of denials of benefits issued by a private carrier.

1.2. Authority. -- W. Va. Code ((23-1-1; 23-1-1a(j)(3) and 23-2C-21(c). Pursuant to W. Va. Code (23-1-1a(j)(3), rules adopted by the board of managers and the commission are not subject to legislative approval as would otherwise be required under W. Va. Code, (29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- October 28, 2005.

1.4. Effective Date. -- December 1, 2005.

1.5. Repeal of former rule. This rule repeals and replaces 85 C.S.R. 4, (Payment of Attorney(s Fees by the Workers( Compensation Commissioner( filed and effective on May 23, 1985.

(85-4-2. Definitions.

As used in this rule, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

2.1. (Act( means the workers' compensation laws of the state of West Virginia which are codified at W. Va. Code (23-1-1 et seq.

2.2. (Board( means the workers(( compensation board of managers created pursuant to the provisions of W. Va. Code (23-1-1a.

2.3. (Commission( means the workers( compensation commission created pursuant to the provisions of W. Va. Code (23-1-1.

2.4. (Code(, (Code of West Virginia( and (West Virginia Code( mean the West Virginia Code of 1931, as amended.

2.5. (Executive Director( means the executive director of the Workers( Compensation Commission as provided pursuant to the provisions of W.Va. Code (23-1-1b.

2.6. (Insurance Commissioner( means the insurance commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code.

2.7. “Office of Judges” refers to the Office of Judges, as set forth in W. Va. Code (23-5-8.

2.8. (Private Carrier( means any insurer, including the successor to the Commission, authorized by the insurance commissioner to provide workers( compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code, but shall not include self-insured employers.

2.9. (Self-insurer( and (self-insured employer( mean employers who are eligible and have been granted self-insured status under the provisions of W. Va. Code (23-2-9.

(85-4-3. Denial rulings; types.

3.1. The Office of Judges may determine that certain denial rulings by a private carrier or self-insured employer are unreasonable and, upon reversal of the denial, award attorney(s fees to the claimant to be paid by the private carrier or self-insured employer.

3.2. Denial rulings; limited types.

a. The Office of Judges may only award attorney(s fees to a claimant when the unreasonable denial ruling:

1. Denies the compensability of a claim;

2. Denies an initial award of temporary total disability; or 3. Denies an authorization for medical benefits.

3.3. The Office of Judges shall not award attorney(s fees to a claimant resulting from any other type of denial ruling by a private carrier or self-insured employer.

(85-4-4. Payment of awards.

4.1. An award of reasonable attorneys( fees and costs actually incurred in reversing an unreasonable denial decision shall be paid by a private carrier or self-insured employer.

4.2. Reasonable attorneys( fees incurred in reversing an unreasonable denial of compensability or an initial award of temporary total disability shall be the attorney(s fees allowed pursuant to W. Va. Code (23-5-16. Attorney(s fees shall be payable only upon the conclusion of all litigation and appeals if the denial decision has been reversed and if the Office of Judges has determined that the denial decision is unreasonable.

a. Attorneys shall not be entitle to receive attorney fees under both the provisions of W. Va. Code (23-5-16 and this rule. Any amounts received in excess of the statutory amount shall be reimbursed to the claimant for incurred attorney(s fees.

4.3. Reasonable attorneys( fees incurred in reversing an unreasonable denial of an authorization of medical benefits will be calculated at a rate of $110 per each hour worked through a final decision by the Office of Judges, up to a maximum of $1,500. The attorney will be paid $110 per hour worked for any appellate work at the Board of Review and West Virginia Supreme Court of Appeals, up to a maximum additional $1,500. Attorney(s fees shall be payable only upon the conclusion of all litigation and appeals if the denial decision has been reversed and if the Office of Judges has determined that the denial decision is unreasonable. The hours worked shall begin to accrue upon the injured workers( receipt of the denial of medical authorization.

4.4. Costs actually incurred in the process of obtaining a reversal of the unreasonable denial is limited to the following items incurred after the date of the denial decision:

a. Court filing costs;

b. Service of process costs;

c. Transcription costs;

d. Costs of preparation of medical reports; and e. Costs of testimony of expert witnesses.

4.5. In no event shall the costs of the preparation of a medical reports or the testimony of expert witnesses exceed the normal and customary fee schedule of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

4.6. The attorney(s fees and actual costs shall be paid upon petition presented to the private carrier or self-insured employer. The fee petition shall provide the contract of representation, an itemization of all legal services provided and the amount of time (expressed in tenths of an hour) expended in providing them, and an itemized listing of the actual costs incurred in the litigation of the matter.

4.7. In no event shall attorney(s fees and costs be awarded for disputes regarding the amount contained within the fee petition presented to the private carrier or self-insured employer.

(85-4-5. Appeals of Office of Judges( decisions.

Determinations made by the Office of Judges to award or not award attorney(s fees to the claimant shall be appealable in accordance with the provisions of W. Va. Code (23-5-10.

(85-4-6. Severability.

If any provision of this rule or the application thereof to any entity or circumstance shall be held invalid, such invalidity shall not affect the provisions or the applications of this rule which can be given effect without the invalid provisions or application and to this end the provisions of this rule are declared to be severable.

85CSR4

85CSR4

Series 05 Permanent Total Disability

W. Va. Code R. § 85-5-1 General

1.1. Scope. -- This rule implements the provisions of West Virginia Code Section 23-4-6(j)(1) regarding the proper completion and support for an application for permanent total disability benefits and the provisions of West Virginia Section 23-4-16(d) regarding the continuous monitoring of permanent total disability awards.

1.2. Authority. -- W. Va. Code §§23-4-6(j)(1); §23-4-16(d). Pursuant to W. Va. Code, §23-1-1a(j)(3), rules adopted by the Workers Compensation Board of Managers are not subject to legislative approval as would otherwise be required under W. Va. Code, §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- June 29, 2005.

1.4. Effective Date. -- August 1, 2005.

W. Va. Code R. § 85-5-2 Definitions

The following terms and words have the meanings stated, unless the context clearly indicates otherwise.

2.1. Executive Director" means the executive director of the West Virginia Workers’ Compensation Commission pursuant to W. Va. Code §23-1-1b.

2.2. "Commission" means the West Virginia Workers' Compensation Commission as provided for by W. Va. Code §23-1-1, and where appropriate, reference to the Commission shall include the self-insured employer.”

2.3. "Act" means the workers' compensation laws of the State of West Virginia that are codified at chapter twenty-three of the Code of West Virginia.

2.4. "Code of West Virginia" and "West Virginia Code" means the West Virginia Code of 1931 as amended.

2.5. "This rule" means the present exempt legislative rule that is designated in the caption here as title 85, series 5.

2.6. “Board” means the Workers’ Compensation Board of Managers created pursuant to the provisions of West Virginia Code Section 23-1-1a, et seq.

2.7. “PTD Application” shall mean an application for permanent total disability benefits provided for in West Virginia Code Section 23-4-6(d), et seq.

2.8. “PTD Recipient” shall mean any individual receiving permanent total disability benefits from the Commission or its predecessor agencies, self-insured employers or private carriers, whichever may be applicable, regardless or date of injury, date of last exposure, or date of award.

2.9. “PTD Award” shall mean an award of permanent total disability benefits, regardless or date of injury, date of last exposure, or date of award.

2.10. “Insurance Commissioner” means the insurance commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code.

2.11. “Insurer” shall mean 1) as self-insured employer; or 2) a private carrier.

2.12. “Private carrier” means any insurer authorized by the insurance commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code.

2.13. “Reviewing body” means the interdisciplinary examining board or, upon termination of the Commission, the reviewing body who has jurisdiction over the claim as set forth in the provisions of W. Va. Code §23-4-6(j).

W. Va. Code R. § 85-5-3 Completion and Support of PTD Application

3.1. A PTD Application will not be processed by the Commission, self-insured employer or private carrier, whichever is applicable, unless and until a Commission or insurance commissioner approved application is filed with the Commission, self-insured employer or private carrier that has been properly and fully completed, and is accompanied by all supporting information requested by the Commission, self-insured employer, or private carrier in its sole discretion. The PTD Application shall be on a form provided by the Commission or insurance commissioner which shall solicit the following information:

a. Applicant’s name;

b. Applicant’s social security number;

c. Applicant’s injuries and dates of injuries;

d. Applicant’s date of birth;

e. Applicant’s address;

f. Applicant’s phone number;

g. Applicant’s current employment status (employed, unemployed, self-employed, off due to injury);

h. Details regarding any efforts by the Applicant to apply for and/or receive social security benefits, of any type;

i. Details regarding any efforts by the Applicant to apply for and/or receive a retirement benefit of any type, include, but not limited to, receipt of a defined benefit or disability pension plan. The Applicant shall advise as to whether he or she contributed to the retirement plan and whether the plan benefit is being paid under the terms and conditions of a collective bargaining agreement;

j. All workers’ compensation claims indicating their claim number, the date of injury, the injured body part, the impairment rating, if any, awarded in the claim, and the name of the employer and the employer’s insurer in the claim;

k. All disability claims filed with any other state or federal agencies;

l. Copies of all medical reports indicating that the claimant has a permanent impairment;

m. Information regarding any non-work related injuries or diseases suffered by the Applicant;

n. Medical history;

o. Prescription drug history;

p. Employment history, including dates on employment for each employer;

q. Military history; and r. Education history.

3.2. The PTD Application shall contain a Fraud Warning and shall reference applicable criminal and civil penalties as set forth in Chapter 23 and Chapter 61 of the West Virginia Code and, upon termination of the Commission, shall also reference applicable penalties under Chapter 33 of the West Virginia Code.

3.3. The Commission, self-insured employer or private carrier may utilize an Application for determining whether a claim should be opened for consideration as more fully set forth in West Virginia Code Section 23-4-6(n)(1) which solicits the information set forth in 3.1 that is pertinent to such determination and may thereafter utilize an Application Addendum or Supplemental Application to solicit more detailed information if the Commission, self-insured employer or private carrier determines that the requirements of West Virginia Code Section 23-4-6(n)(1) have been met. A claim will not be re-opened for PTD consideration unless the Application has been filed within five (5) years of the date of closure of the claim, or within five (5) years of the date of the initial PPD award, whichever is applicable, as required by West Virginia Code Section 23-4-16. Further, any request for reopening shall be subject to the limitation on the number of requests (two) as contained within the provisions of W. Va. Code §23-4-16(a)(1).

3.4. The Applicant shall submit detailed and complete information regarding any benefits being paid to the Applicant through a retirement plan, wage replacement plan, salary continuation plan or other benefit plan provided by any current or former employer. The Applicant shall supply any evidence illustrating that he or she contributed to the plan and/or that the benefits being paid under the terms and conditions of a collective bargaining agreement.

3.5. The Applicant shall execute and update any and all Releases or Authorizations required by the Commission, self-insured employer or private carrier, including, but not limited to, those Releases and Authorizations required for the Commission, self-insured employer, or private carrier to obtain state and federal tax records, financial records, affidavits, income records, social security records, employment records, military service records, medical records, education records and records held by other insurers, including self-insured employers.

3.6. All material information required in Sections 3.1-3.5 must be received by the Commission, self-insured employer, or private carrier before the PTD Application will be deemed complete and adequately supported.

3.7. No issue of permanent total disability may be referred to reviewing body unless a properly completed and supported application for permanent total disability benefits has been received by the Commission, self-insured employer, or private carrier. Prior to the referral of any issue to the reviewing body, the commission, self-insured employer or private carrier shall conduct examinations of a claimant that it finds necessary and obtain all pertinent records concerning a claimant’s medical history and reports of examinations and forward them to the reviewing body at the time of the referral.

3.8. Claimants’ whose applications for permanent total disability benefits do not satisfy the re-opening requirements of West Virginia Code Section 23-4-6(n)(1), as determined in the sole discretion of the Commission, self-insured employer, or private carrier, shall not be referred to the reviewing body and said decision shall be issued as a protestable order.

3.9. For all applications received on or after June 1, 2005, a claim determined to be eligible for evaluation for a permanent total disability award shall be ruled on by the reviewing body within one (1) year from the date such eligibility was determined. Nevertheless, for good cause, this period may be extended by the Commission, self-insured employer, or private carrier at the request of the employer or injured worker

W. Va. Code R. § 85-5-4 Program to Update Disability Status of Those Receiving PTD Benefits as of July 1, 2003

4.1. Upon the effective date of this Rule, the Commission will begin a program requiring each person receiving permanent total disability benefits as of July 1, 2003, who had been granted a permanent total disability award on or after April 8, 1993, to 1) submit his or her tax returns for the preceding three (3) years; and 2) an affidavit demonstrating level of income, recreational activities, and work activities. Any permanent total disability award granted prior to April 8, 1993 but reopened for a benefit level adjustment shall be eligible for this review.

4.2. Each month, the Commission shall contact, by certified mail, approximately five hundred (500) PTD Recipients in an effort to secure the information set forth in Section 4.1. The mailing shall include an appropriate Internal Revenue Service authorization which can be completed in full and returned to the Commission, a form affidavit, and a self-addressed, postage pre-paid return envelope so that the documents can be returned to the Commission at no charge to the PTD Recipient.

4.3. The mailing shall instruct the recipient that he or she has forty-five (45) days from receipt to return the requested information or otherwise fully and adequately respond to the Commission’s inquiry. Failure to so respond shall result in a second notice being sent to the PTD Recipient in the manner set forth in Section 4.2. The PTD Recipient will be given another forty-five (45) days to respond to this second notice and the PTD Recipient will be advised that failure to fully and adequately respond will result in a suspension of permanent total disability benefits.

4.4. Failure of a PTD Recipient to fully and adequately respond to the second notice as described in Section 4.3 above shall result in the suspension of permanent total disability benefits. The suspension shall remain in effect until the PTD Recipient has fully complied with the Commission’s request. Benefits may be reinstated prospectively if and when the PTD Recipient fully complies with the Commission’s request, but the benefits lost during the suspension shall not be paid.

4.5. The Commission will identify those injured workers who appear to be working, receiving income, not reporting any medical care, or are believed to otherwise not meet the current eligibility criteria for a permanent total disability award and make these individuals a priority review. Otherwise, the PTD review shall generally begin with those most recently awarded a permanent total disability award and will work in reverse chronological order thereafter.

W. Va. Code R. § 85-5-5 Monitoring of PTD Recipients

5.1. The Commission, self-insured employer, or private carrier shall continuously monitor permanent total disability awards and may reopen a claim for reevaluation of the continuing nature of the disability and possible modification of the award. In evaluating whether to reopen a claim, the Commission, self-insured employer, or private carrier may employ one (1) or more of the following methods:

a. Require the PTD Recipient to provide documents as more fully set forth in Section 4 above and other information to the Commission, self-insured employer, or private carrier, including, but not limited to, tax returns, financial records, affidavits demonstrating level of income, recreational activities, work activities, and any other information set forth in Section 3.1.a.-r. of this Rule;

b. Require the PTD Recipient to appear under oath before the Commission, self-insured employer, or private carrier or its duly authorized representative and answer questions;

c. Any claimant who willfully fails to provide the information called for in Section 5.1.a. or willfully fails to appear as required by Section 5.1.b. shall have his or her permanent total disability benefits suspended. The suspension shall remain in effect until the PTD Recipient has fully complied with the Commission’s, self-insured employer’s, or private carrier’s request. Benefits will be reinstated prospectively if and when the PTD Recipient complies with the Commission’s, self-insured employer’s, or private carrier’s request, but the benefits lost during the suspension shall not be paid.

5.2. If the Commission, self-insured employer, or private carrier concludes, in its sole discretion, that there exists good cause to believe that the PTD Recipient no longer meets the eligibility requirements of West Virginia Code Section 23-4-6(n), the claim may be reopened after providing the PTD Recipient 30 days written notice.

5.3. Upon reopening, the Commission, self-insured employer, or private carrier may modify the PTD award or reevaluate the continuing nature of the PTD Recipient’s disability. The eligibility requirements for evaluating a PTD Recipient’s permanent total disability status shall be the requirements, including any vocational standards, stated in Chapter 23 at the time of a claim’s reopening, regardless of date of injury or date of award. If appropriate, the Commission, self-insured employer, or private carrier, in its sole discretion, may process the reopening through the reviewing body or through any other medical review process. 5.4 Upon reopening, the Commission, self-insured employer, or private carrier may take evidence, have the claimant evaluated, make findings of fact and conclusions of law and issue a Final Order that 1) shall vacate, modify or affirm the award; 2) require the offset of any benefits being paid to the PTD Recipient due the PTD Recipient’s receipt of benefits from a retirement plan, wage replacement plan, salary continuation plan or other benefit plan provided by any current or former employer as more fully provided for in West Virginia Code Section 23-4-1d(f), as that provision may be amended from time to time; 3) may award any rehabilitation benefits as more fully provided for in West Virginia Code Section 23-4-9, as that section may be amended from time to time; or 4) may otherwise modify the PTD Award as determined appropriate in the sole discretion of the Commission, self-insured employer, or private carrier.

a. The Commission, self-insured employer, or private carrier shall issue a proposed order setting forth its findings, which shall become effective in 120 days from the date of the order unless the injured worker submits evidence within 90 days of the proposed order establishing that the proposed action is not supported by the weight of the evidence submitted.

5.5. The PTD Recipient’s former employer shall not be a party to the reevaluation, but shall be notified of the reevaluation and may submit any information to the Commission, self-insured employer, or private carrier as the employer may elect.

5.6. In the event the claimant retains his or her award following the reevaluation, the PTD Recipient shall be reimbursed his or her costs in obtaining one evaluation on each issue during the course of the reevaluation with the reimbursement being made from the workers’ compensation fund.

5.7. Upon being identified as a candidate for reevaluation, an injured worker shall be entitled to legal counsel and the injured worker’s attorneys’ fees incurred in defending the award shall be paid by the Commission, self-insured employer, or private carrier. The attorney will be paid $110 per each hour worked through a final decision by the Office of Judges, up to a maximum of $3,500. The attorney will be paid $110 per hour worked for any appellate work at the Board of Review and West Virginia Supreme Court of Appeals, up to a maximum additional $1,500. The fee shall be payable only upon the issuance of a decision by the West Virginia Supreme Court of Appeals, or a lower jurisdiction if an appeal is not taken. The hours worked shall begin to accrue upon the injured workers’ receipt of a Commission, self-insured employer, or private carrier notice identifying him or her for review. The maximum attorney fee allowable under this section may be waived in extraordinary cases in the sole discretion of the Commission, self-insured employer, or private carrier. 5.8 The reopening and reevaluation process shall not apply to PTD Awards granted pursuant to West Virginia Code Section 23-4-6(m). 5.9 The Commission’s, self-insured employer’s, or private carrier’s Final Order, issued pursuant to Section 5.4 shall be a protestable Order. The Commission’s, self-insured employer’s, or private carrier’s reopening and other actions set forth in Section 5.1-5.3 shall not be protestable.

W. Va. Code R. § 85-5-6 Termination of the Commission

Upon termination of the commission, the application requirements set forth in Section 3 of this exempt legislative rule and all duties set forth in Sections 4 and 5 of this exempt legislative rule as they are to be performed in connection with Old Fund liabilities as set forth in W. Va. Code §23-2C-2(m) shall be required and performed by the insurance commissioner and/or the insurance commissioner’s administrator of the Old Fund or the administrator of other various funds regulated by the insurance commissioner. The application requirements set forth in Section 3 of this exempt legislative rule and all duties set forth in Section 5 of this exempt legislative rule as they are to be performed in connection with liabilities other than those contained in the Old Fund may be required and performed by insurers as defined above.

W. Va. Code R. § 85-5-7 Severability

If any provision of this rule or the application thereof to any entity or circumstance is held invalid, such invalidity does not affect the provisions or the applications of this rule which can be given effect without the invalid provisions or application and to this end the provisions of this rule are declared to be severable.

85CSR5

85CSR5

Series 06 Workers' Compensation Debt Reduction Fund Assessments And Regulatory Surcharges

W. Va. Code R. § 85-6-1 General

1.1. Scope. -- This exempt legislative rule provides for the establishment and collection of statutory percentage surcharges to be remitted to the Insurance Commissioner for deposit in the Workers’ Compensation Debt Reduction Fund created in W. Va. Code §23-2D-5 and for statutory percentage surcharges to be remitted to the Insurance Commissioner for the regulatory costs associated with regulating West Virginia’s workers’ compensation market.

1.2. Authority. -- W. Va. Code §§23-2C-3(f)(1) through (3); 23-2C-5(c)(2); 23-2C-22; 23-2D-5; 23-2D-6; 33-2-10(b); and 33-2-21(a). Pursuant to W. Va. Code §§23-2C-5(c)(2) and 33-2-10(b), workers’ compensation rules proposed by the Insurance Commissioner and approved by the Industrial Council are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- July 18, 2008.

1.4. Effective Date. -- August 17, 2008.

W. Va. Code R. § 85-6-2 Purpose of Rule

This rule provides for the implementation of the following:

2.1. Pursuant to W. Va. Code §23-2C-3(f)(3), a premiums surcharge on private carrier workers’ compensation policy holders for deposit into the “West Virginia Workers’ Compensation Debt Reduction Fund;”

2.2. Pursuant to W. Va. Code §23-2C-3(f)(3) an assessment on the self-insured employer community for deposit into the “West Virginia Workers’ Compensation Debt Reduction Fund;”

2.3. Pursuant to W. Va. Code §23-2C-3(f)(1), a percentage surcharge on private carrier workers’ compensation policy holders to pay for the costs attributable to the regulation of the workers’ compensation insurance market; and

2.4. Pursuant to W. Va. Code §23-2C-3(f)(2), a percentage surcharge on self-insured employers to be remitted to the Insurance Commissioner to pay for the costs attributable to the regulation of the self-insured employer market.

W. Va. Code R. § 85-6-3 Definitions

As used in this rule, the following terms, words, and phrases have the meanings stated unless in any instance where such term, word or phrase is employed and the context expressly indicates that another meaning is intended.

3.1. “Industrial Council” means the Industrial Council created pursuant to W. Va. Code §23-2C-5.

3.2. “Code of West Virginia” and “West Virginia Code” mean the West Virginia Code of 1931, as amended.

3.3. “Insurance Commissioner” means the Insurance Commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code.

3.4. “Payment interval” means each periodic payment of the employer’s workers’ compensation coverage obligation to the private carrier as established by the workers’ compensation policy.

3.5. “Payroll” means the term as defined in the most current approved filing of the Insurance Commissioner’s designated rating organization for workers’ compensation.

3.6. “Private carrier” means any insurer authorized by the Insurance Commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code.

3.7. “Private carrier regulatory surcharge” is the surcharge described in subsection 2.3. of this rule.

3.8. “Self-insured employer regulatory surcharge” is the surcharge described in subsection 2.4. of this rule.

3.9. “Self-insurer” and “self-insured employer” mean an employer who is eligible and have been granted self-insured status under the provisions of W. Va. Code §23-2-9.

3.10. “Total Assessable Workers’ Compensation Premium Due” means the premium payable at each payment interval to a private carrier by an employer for its West Virginia workers’ compensation coverage under chapter twenty-three of the West Virginia Code, including, but not limited to, the base rate premium as adjusted by any experience modification factor. “Total assessable workers’ compensation premium due” shall also be computed prior to the application of all discounts based on deductible provisions in policies. The Insurance Commissioner has discretion to determine which premiums constitute premiums for West Virginia workers’ compensation coverage and which premiums constitute other insurance coverage subject to premium taxes and surcharges under chapter thirty-three of the West Virginia Code: Provided, That under no circumstances may any premiums be subject to both the surcharges under chapter twenty-three of the West Virginia Code and this rule and taxes and surcharges under thirty-three of the West Virginia Code. Premiums payable for insurance coverage necessitated by federal law, including, but not limited to, Federal Black Lung and USL&H coverage, and for any type of employer’s liability coverage, including, but not limited to, coverage for liability arising under W. Va. Code § 23-4-2(d)(2) are not included in the “total assessable workers’ compensation premium:” Provided, further, That, with the exception of premiums for coverage necessitated by federal law, premiums for standard limits of employer’s liability coverage included in a workers’ compensation policy are included in “total assessable workers’ compensation premium due.”

3.11. “WCDRF premiums surcharge” is the surcharge described in subsection 2.1. of this rule.

3.12. “WCDRF self-insured employer surcharge” is the surcharge described in subsection 2.2. of this rule.

W. Va. Code R. § 85-6-4 Surcharges on Private Carrier Premiums

4.1. The Insurance Commissioner shall assess private carriers the following statutory percentage surcharges:

a. The private carrier regulatory surcharge; and b. The WCDRF premiums surcharge.

Beginning on July 1, 2008, the private carrier regulatory surcharge shall be 5.5% and the WCDRF premiums surcharge shall be 9%. The Insurance Commissioner may annually change the percentage of the private carrier regulatory surcharge as the Commissioner deems necessary beginning on July 1, 2013: Provided, That the Commissioner shall provide private carriers at least ninety (90) days notice prior to changing the private carrier regulatory surcharge percentage. The private carrier shall collect and remit the surcharges to the Insurance Commissioner. Any change to the percentage may be implemented by private carriers only in policies issued or renewed on or after the effective date of the change.

4.2. The surcharges described in this section are also applicable to all uninsured employers [W. Va. Code §23-2C-8], to the extent that the Insurance Commissioner is able to collect the same, and to all employers assigned to the adverse risk fund [W. Va. Code §23-2C-10].

4.3. The obligation of the private carrier is to collect and remit the surcharges described in this section, as set by the Insurance Commissioner, from the total assessable workers’ compensation premium due and received by the private carrier. The private carrier has no obligation to the Insurance Commissioner or to the Workers’ Compensation Debt Reduction Fund to make up for surcharge amounts not collected as a result of the insured’s failure to pay their premium.

4.4. Failure by an insured to pay the percentage surcharge as invoiced by their private carrier on the premium invoice is grounds for cancellation of the workers’ compensation policy for failure to pay premium.

W. Va. Code R. § 85-6-5 Surcharges on the Self-insured Employer Community

5.1. The Insurance Commissioner shall assess self-insured employers the following statutory percentage surcharges:

a. The self-insured employer regulatory surcharge; and b. The WCDRF self-insured employer surcharge.

The percentage surcharges apply to the payroll of each self-insured employer. Each self-insured employer shall remit the surcharges to the Insurance Commissioner on a quarterly basis. The surcharge percentage set by the Insurance Commissioner shall be effective July 1 of that year. The Insurance Commissioner may change the percentage annually, as needed to meet the annual funding requirements as set forth in W. Va. Code §23-2C-3(f). The Insurance Commissioner shall provide at least ninety (90) days notice to self-insured employers prior to changing the percentage amounts.

5.2. If the annual statutory amount collected for the Insurance Commissioner under the surcharges described in this section exceeds or is less than the annual statutory funding requirements, the excess or shortage shall be applied in the determination of the percentage for the next year, so that the running average collected for the Insurance Commissioner is consistent with the aggregate monetary amount required to be collected under the statute.

W. Va. Code R. § 85-6-6 Surcharge and Assessment Methodology for Collections of Surcharges Made Pursuant to W. Va. Code §23-2C-3(f)(3)

6.1. The surcharges imposed by section four of this rule shall be reflected on each premium invoice issued by a private carrier, regardless of the payment interval. The surcharge percentage shall be applied against the total assessable workers’ compensation premium due.

6.2. The surcharges shall be remitted by the private carrier no later than the twenty-fifth day of the month succeeding the end of the calendar quarter in which they are collected, except if the surcharges are collected in the fourth quarter, the surcharges shall be remitted no later than the first day of March the succeeding year.

6.3. Each self-insured employer, group self-insurer, or insurance carrier shall provide any information and submit any reports the Insurance Commissioner may require to effectuate the provisions of this rule.

85CSR6

85CSR6

Series 07 Rules For Selected Hearings

W. Va. Code R. § 85-7-1 General

1.1. Scope. -- This procedural rule is intended to set forth the procedures for administrative hearings which are conducted pursuant to the West Virginia Administrative Procedures Act, W. Va. Code, §29A-5-1 et seq. While not all of the hearings conducted by the commission are held pursuant to that act, those hearings that are subject to the act will be conducted in accordance with this rule. This procedural rule does not affect any matter residing in the jurisdiction of the Office of Judges under the provisions of W. Va. Code §23-5-1 et seq.

1.2. Authority. -- W. Va. Code §23-2-17. Pursuant to W. Va. Code, §23-1-1a(j)(3), rules adopted by the Workers Compensation Board of Managers are not subject to legislative approval as would otherwise be required under W. Va. Code, § 29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- June 29, 2005.

1.4. Effective Date. -- August 1, 2005.

W. Va. Code R. § 85-7-2 Definitions

As used in this rule, the following terms, words, and phrases have the meanings stated unless in any instance where such term, word, or phrase is employed the context expressly indicates that another meaning is intended.

2.1. "Act" means the workers' compensation laws of the State of West Virginia which are codified at chapter twenty-three of the Code of West Virginia.

2.2. "Code of West Virginia" and "West Virginia Code" mean the West Virginia Code of 1931, as amended.

2.3. “Executive Director” means the executive director of the West Virginia Workers’ Compensation Commission pursuant to section one-b, article one, chapter twenty-three of the West Virginia Code.

2.4. “Commission” means the West Virginia Workers’ Compensation Commission as provided for by section one, article one, chapter twenty-three of the West Virginia Code.

2.5. “Insurance Commissioner” means the insurance commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code.

2.6. "This rule" means the present procedural rule which is designated in the caption hereof as title 85, series 7.

W. Va. Code R. § 85-7-3 Article Two Decisions

3.1. “Article two decision or action,” means a decision or action taken under the provisions of article two, chapter twenty-three of the West Virginia Code.

3.2. Language. On and after the effective date of this rule, each written article two decision or action shall include language to inform the employer that it is afforded the right to file a request for reconsideration of the decision or action.

3.3. Requirement. Each employer who desires to dispute an article two decision or action is required to file a complete and timely request for reconsideration as a condition precedent to filing a petition for an article two hearing under the provisions of W. Va. Code §23-2-17. No request for reconsideration is required to be filed in petitions for relief filed under the provisions of W. Va. Code §23-2-15.

3.4. Time limits. A request for reconsideration shall be filed with the commission within thirty (30) days of the employer’s receipt of notice of the disputed commission’s decision or action or, in the absence of such a receipt, within sixty days of the date of the commission’s making such disputed decision or taking such disputed action. Such time limitations are a condition of the right to litigate the decision or action and are jurisdictional.

3.5. Contents of the request for reconsideration. In its request for reconsideration, the employer shall clearly identify the decision or action disputed. The employer shall also clearly identify the bases upon which the employer disputes the decision or action.

3.6. Review. Upon the filing of an employer’s request for reconsideration, the commission shall review the bases for the request. Such a review may include a meeting with the employer, a review of the employer’s records, or any other process calculated to provide the commission with the relevant information necessary to perform its review. After reviewing the request, the commission shall enter its final decision.

3.6.1. The commission is required to enter a final decision or enter into an extension agreement with the employer within one hundred-twenty (120) days from the date the employer’s request for reconsideration is filed.

3.6.2. The commission and the employer may enter into a written extension agreement to provide no more than an additional sixty (60) days for the commission to enter a final decision.

3.6.3. The commission’s failure to enter a final decision within the initial time period or extended time period, where applicable, triggers an employer’s right to file a petition for hearing under the provisions of W. Va. Code §23-2-17.

3.7. Effect of filing. The filing of a timely and complete request for reconsideration of a written decision or action of the commission stays the tolling of the time limitations for filing a petition for hearing under the provisions of W. Va. Code §23-2-17 until the final decision is issued.

3.8. Example. The employer receives an article two decision or is notified of an article two action. The employer desires to dispute the decision or action. The employer must file a request for reconsideration of the decision or action and await the commission’s final decision in the matter, the expiration of the one hundred-twenty (120) day period for the commission to issue a final decision, or the expiration of such additional written time extension agreement as limited by this rule. The final decision may be contested under the process provided in W. Va. Code §23-2-17. Should the employer fail to file a timely and complete request for reconsideration, then the commission’s decision or action becomes final.

3.9. Conversion. On and after the effective date of this rule, a petition for hearing filed under the provisions of W. Va. Code §23-2-17 shall be converted to a request for reconsideration when there has not been a previous filing of a request for reconsideration of the disputed decision or action. The commission shall notify the employer of this conversion.

3.10. Petitions for hearing. All article two petitions for hearing shall be filed with a hearing examiner designated by the executive director and, upon termination of the commission, the insurance commissioner.

W. Va. Code R. § 85-7-4 Administrative Hearings; Notice; and Place

4.1. All administrative hearings conducted pursuant to this rule will be held in accordance with the provisions of W. Va. Code, §29A-5-1 et seq., and with the provisions of this rule. In any particular case, any special conditions which are set forth in the Act or in other rules promulgated by the commission and the Board of Managers and which are applicable to that case will be adhered to during administrative hearings in lieu of any contrary provision in this rule.

4.2. Unless waived by all the parties to the hearing, all hearings shall be preceded by at least ten (10) days written notice. The notice shall be given either by personal delivery thereof to the person or to the entity to be notified or by depositing such notice in the certified United States mail, postage prepaid, return receipt requested, in an envelope addressed to such person or other entity at the last known address of such person or other entity. Proof of the giving of notice in either such manner may be made by the affidavit of any person over eighteen years of age, naming the person or other entity to which or to whom such notice was given and specifying the time, place and manner of the giving thereof. If certified mail is used, then a copy of the return receipt shall be attached to the proof of notice.

4.3. Notice of the hearing and service of any document or order shall be upon the parties of record except that any party who is represented by an attorney shall be deemed to have designated that attorney as the proper recipient of all such notices, documents, or orders and service upon that attorney will be the equivalent for all purposes as service upon the party. Notice shall be complete if the written notice is personally tendered to the intended recipient and is either accepted or refused by that recipient. Similarly, notice shall be complete if the written notice is sent by certified mail, return receipt requested, to the recipient and the return receipt shows that it was either accepted by a person at the last known address or was refused by a person at the last known address.

4.4. In any instance where any form of notice, including one arising under subsection 4.2 of this rule or one contained in any order or document, the time period will begin to elapse with the first day following the date of the notice, order, or document. This rule is applicable whether the notice is delivered personally or served by mail.

4.5. The subsection 4.2 notice shall contain the date, time, and place of the hearing and a short and plain statement of the matters asserted. If the commission is unable to state the matters in detail at the time the notice is served, the initial notice may be limited to a statement of the issues involved. Thereafter, upon application by a party a more definitive and detailed statement shall be furnished.

4.6. The hearing shall be held in the county selected by the commission.

W. Va. Code R. § 85-7-5 Parties and Conduct of Hearings

5.1. At the hearing, an opportunity shall be afforded all parties to present evidence and argument with respect to the matters and issues involved. Argument may be restricted to a presentation in written form. All of the testimony and evidence at the hearing shall be reported by stenographic notes and characters or by mechanical means. All rulings on the admissibility of testimony and evidence shall also be reported. The commission shall prepare an official record, which shall include reported testimony and exhibits in each contested case, and all agency staff memoranda and data used in consideration of the case, but it shall not be necessary to transcribe the reported testimony unless required for purposes of rehearing or judicial review. All reported testimony and evidence at a hearing shall be transcribed, and a copy thereof furnished to the party upon its request. The commission shall have the responsibility for making arrangements for the transcription of the reported testimony and evidence and such transcription shall be accomplished with all dispatch.

5.2. Evidentiary depositions may be taken and read as in civil actions in the circuit court of this state.

5.3. Except to the extent required by statute or by this rule, all hearings under this rule will be conducted in accordance with the "Rules of Civil Procedure for Trial Courts of Record," "Trial Court Rules for Trial Courts of Record," and "Local Rules for Kanawha County Civil Courts" as those rules would apply to a trial court sitting without a jury.

5.4. All hearings shall be conducted in an impartial manner. The commission, the executive director, inspectors, and every hearing officer appointed by the commission shall have the power to administer oaths and affirmations, certify official acts, take depositions, rule upon offers of proof and receive relevant evidence, regulate the course of the hearing, hold conferences for the settlement or simplification of the issues (subject to the limitations stated elsewhere in this rule) by consent of the parties, dispose of procedural requests, motions, or similar matters, and take such other actions as are authorized by this rule.

5.5. During a hearing, irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The "Rules of Evidence" as applied in civil cases by a court sitting without a jury shall be followed. However, when necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs. The hearing officer shall be bound by the rules of privilege recognized by law. Objections to evidentiary offers shall be noted in the record, but exceptions to rulings by the hearing officer shall not be made. Any party to any hearing may vouch the record as to any excluded testimony or other evidence provided that the hearing officer may elect to require that the excluded testimony be submitted in written form following the hearing.

5.6. All evidence, including papers, records, agency staff memoranda and documents in the possession of the commission, of which it desires to avail itself, shall be offered and made a part of the record in the case, and no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies of excerpts or by incorporation by reference. In all cases, copies of orders, proceedings, or records in the offices of the commission shall be equal to the original in evidence.

5.7. Every party shall have the right of cross-examination of witnesses who testify, and shall have the right to submit rebuttal evidence.

5.8. All witnesses who testify during a hearing shall first be subject to oath or affirmation and any testimony submitted by deposition shall show on the face thereof that the witness was so qualified.

5.9. The hearing officer may take notice of judicially cognizable facts. All parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed.

5.10. Burden of proof. There is a presumption that the commission’s decisions or actions are valid. The party contesting the commission’s decisions or actions has the burden of overcoming this presumption by satisfactory proof.

W. Va. Code R. § 85-7-6 Correction of the Record

Upon motion in writing served by any party as notice may be served pursuant to subsection 4.2 of this rule and therein assigning error or omission in any part of any transcript of the proceedings had and testimony taken at any such hearing, the hearing officer shall settle all differences arising as to whether such transcript truly discloses what occurred at the hearing or shall direct that the transcript be corrected and revised in the respects designated by the hearing officer, so as to make it conform to the whole truth.

W. Va. Code R. § 85-7-7 Subpoenas

7.1. The hearing officer may issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounts, papers, records, documents, and testimony. All subpoenas and subpoenas duces tecum shall be issued in the name of the hearing officer or other authorized official, but any party requesting their issuance must see that they are properly served. All requests by interested parties for subpoenas and subpoenas duces tecum shall be in writing and shall contain a statement acknowledging that the requesting party agrees to pay service fees and fees for the attendance and travel of witnesses.

7.2. Every subpoena or subpoena duces tecum shall be served at least five (5) days before the return date thereof, either by personal service made by any person over eighteen years of age or by registered or certified mail. But a return acknowledgment signed by the person to whom the subpoena or subpoena duces tecum is directed shall be required to prove service by registered or certified mail. If service is by mail, then the five (5) day notice period shall not begin to run until the date the subpoena or subpoena duces tecum is received by the person or entity subject thereto as shown by the date on the return receipt.

7.3. Any person who serves any such subpoena or subpoena duces tecum shall be entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state. Fees for the attendance and travel of witnesses shall be the same as for witnesses before the circuit courts of this state. All such fees related to any subpoena or subpoena duces tecum issued at the instance of an interested party shall be paid by the party who asks that such subpoena or subpoena duces tecum be issued.

7.4. Upon motion made promptly and in any event before the time specified in a subpoena duces tecum for compliance therewith, the circuit court of the county in which the hearing is to be held, or the circuit court in which the subpoena duces tecum was served, or the judge of either such court in vacation, may grant any relief with respect to such subpoena duces tecum which either such court, under the West Virginia Rules of Civil Procedure for Trial Courts of Record, could grant, and for any of the same reasons, with respect to a subpoena duces tecum issued from either such court.

7.5. In case of disobedience or neglect of any subpoena or subpoena duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which he or she may be lawfully interrogated, the circuit court of the county in which the hearing is being held, or the judge thereof in vacation, upon application by the commissioner, or any commission employee designated by the commissioner, or hearing officer appointed by the commission, shall compel obedience by attachment proceedings for contempt of a subpoena or subpoena duces tecum issued from such circuit court or a refusal to testify therein.

7.6. The issuance of a subpoena duces tecum will be refused only in an instance when there is good reason to believe that the subpoena power is being abused. All subpoenas and subpoenas duces tecum will state on their face the name of the party who requested it.

W. Va. Code R. § 85-7-8 Discovery

Discovery shall be engaged in only with the consent of the hearing officer or, if a hearing officer has not yet been assigned, with the consent of the commission or the executive director. All discovery requests will be submitted to the appropriate official at the same time as the discovery request is served upon the other party. If the official determines that the requested information is relevant and material to the issues to be heard and not unduly burdensome, the official will permit the discovery and set a reasonable time frame for the disclosure of the information. Determination of a reasonable time frame will be premised upon the nature and scope of the information requested and the date on which the hearing is scheduled. The official shall attempt to avoid continuing a previously scheduled hearing.

W. Va. Code R. § 85-7-9 Hearing Officers

9.1. Every hearing officer appointed by the commission to conduct a hearing under this rule shall be an attorney licensed to practice law in this state.

9.1.1. The commission may delegate the authority necessary for the conduct of proceedings under this rule to the chief administrative law judge of the office of judges. The chief administrative law judge is authorized to assign attorneys from the office of judges as hearing officers.

9.1.2. The commission retains the right to appoint other attorneys as hearing officers for purposes of conducting specific hearings under this rule.

9.2. The hearing officer is authorized to receive and rule upon any procedural matter arising before, during, or after a hearing.

9.3. Requests for continuances by a party shall not be granted as a matter of course, but only upon a showing of good cause.

W. Va. Code R. § 85-7-10 Concluding the Hearing

10.1. At the conclusion of the hearing, the parties shall be permitted to file proposed findings of fact, conclusions of law, and such legal briefs or memoranda as they wish. The parties shall be permitted seven (7) days to file such items which filings shall be concurrent. The parties shall be permitted three (3) days to respond to the filing of any other party. No further argument shall be permitted.

10.2. Thereafter, the hearing officer will prepare a report and recommendation which shall contain proposed findings of fact and conclusions of law as suggested by the hearing officer for the commission’s approval. The parties to the hearing shall then be permitted seven (7) days in which to file objections or comments upon the report and recommendation and three (3) more days to respond to each others' objections and comments. Thereafter, the commission shall decide whether to accept the report and recommendation, to reject it, to modify it, or to remand the matter to the hearing officer for further proceedings or upon other instructions. The commission retains the right to review any and all proposed findings of facts against the record and to disagree therewith provided that the commissioner states the basis for the disagreement in the final order. The commission shall render either a final order or an interlocutory order as the decision may require in which the commission accepts in whole or in part the proposed findings of fact and conclusions of law submitted by the hearing officer and, to the extent that the commission rejects or modifies the report and recommendation of the hearing officer, the commission shall furnish his or her own findings of fact and conclusions of law.

10.3. A copy of the final order or decision of the commission shall be served upon each party and the party's attorney of record, if any, either in person or by certified mail.

10.4. All appeals from the final order or decision of the commission shall be taken pursuant to W.Va. Code, §29A-5-4.

W. Va. Code R. § 85-7-11 Pending petitions

Petitions for hearing filed under the provisions of W. Va. Code §23-2-17, prior to the effective date of this rule, for which no hearing has been held shall be transferred to hearing officers designated by the commission under this rule.

W. Va. Code R. § 85-7-12 Termination of the Commission

Upon termination of the Commission, this procedural rule shall be administered by the insurance commissioner for the purpose of processing matters arising under Article Two, Chapter Twenty-three of the West Virginia Code. This rule shall have no force and effect over the collection of New Fund assets or any other matters involving private carriers and their insureds.

W. Va. Code R. § 85-7-13 Severability

If any provision of this rule or the application thereof to any entity or circumstance shall be held invalid, such invalidity shall not affect the provisions or the applications of this rule which can be given affect without the invalid provisions or application and to this end the provisions of this rule are declared to be severable.

85CSR7

85CSR7

Series 08 Workers Compensation Policies, Coverage Issues and Related Topics

W. Va. Code R. § 85-8-1 General

1.1. Scope. -- This exempt legislative rule provides for: (1) Specific criteria, standards and other clarification as to which entities are required to carry West Virginia workers’ compensation coverage and which individuals are considered employees entitled to benefits under chapter thirty-three of the West Virginia Code; (2) the minimum contents of a policy issued for workers’ compensation insurance pursuant to West Virginia Code §23-1-1 et seq.; (3) ratemaking provisions applicable to workers’ compensation insurance in West Virginia; (4) notice requirements regarding termination of coverage and renewal offers; and (5) coverage related topics.

1.2. Authority. -- W. Va. Code §§23-2C-17(b); 23-2C-18(g); 23-2C-22; 33-2-10(b); and 33-2-21(a). Pursuant to W. Va. Code §§23-2C-5(c)(2) and 33-2-10(b), workers’ compensation rules proposed by the Insurance Commissioner and approved by the Industrial Council are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- August 30, 2021.

1.4. Effective Date. -- September 1, 2021.

W. Va. Code R. § 85-8-2 Purpose of Rule

This rule provides specific criteria, standards and other clarification as to which entities need to carry West Virginia workers’ compensation coverage and which individuals are considered employees who are entitled to benefits under chapter twenty-three of the West Virginia Code, establishes the requirements of a basic policy to be used by private carriers of workers’ compensation insurance, establishes ratemaking provisions applicable to workers’ compensation insurance in West Virginia and addresses other workers’ compensation coverage related topics.

W. Va. Code R. § 85-8-3 Definitions

As used in this rule, the following terms, words, and phrases have the meanings stated unless in any instance where such term, word, or phrase is employed, and the context expressly indicates that another meaning is intended.

3.1. “Casual employer,” as the term is used in W. Va. Code §23-2-1(b)(4) and this rule, means an employer who employs not more than three (3) employees for a period that is temporary, intermittent, and sporadic in nature and does not exceed ten (10) calendar days in any calendar quarter.

3.2. “Classification” means categorization of employees for the purpose of assessing risk, ratemaking, and developing premium charges.

3.3. “Domestic services” means services of a household nature performed by an employee in or about a private home of the person by whom he or she is employed. A private home is a fixed place of abode of an individual or family. If a dwelling house is used primarily for the purpose of supplying board or lodging to the public as a business enterprise, it is not a private home and the services performed therein are not domestic services.

3.3.1. In general, services of a household nature in or about a private home include services performed by cooks, butlers, housekeepers, governesses, maids, valets, babysitters, caretakers, caregivers, medical providers, handymen, gardeners, and chauffeurs of automobile for family use.

3.3.2. The term “domestic services” does not include services of a household nature performed by an employee in or about the private home of a person when that employee is employed by someone other than a member of the household. For example, employees of maid services, temporary employment agencies, or other businesses do not provide domestic services under the provisions of this rule.

3.4. “Employee” has the meaning ascribed to that term by W. Va. Code §§23-2-1 and 23-2-1a. “Employee” does not include a person hired as, and classified as, an independent contractor pursuant to the West Virginia Employment Law Worker Classification Act, as set forth in W.Va. Code §21-5I-1 et seq., and the test established within W.Va. Code §21-5I-4 for classification of independent contractors.

3.5. “Employer” has the meaning ascribed to that term by W. Va. Code §23-2-1, and includes, but is not limited to, any individual, sole proprietor, firm, partnership, limited partnership, limited liability company, joint venture, association, corporation, company, organization, receiver, estate, trust, guardian, executor, administrator, government entity or any other entity regularly employing another person for the purpose of carrying on any form of industry, service or business in this state.

3.5.1. “Industry, service or business,” as the term is used in W. Va. Code §23-2-1(a) and this rule, means an occupation or an employment engaged in for the purposes of obtaining a livelihood or for profit or gain. This term includes any not-for-profit entity or volunteer organization to the extent that such entity or organization employs individuals.

3.5.2. “Carrying on any form of industry, service or business in this state,” as the term is used in W. Va. Code §23-2-1(a) and this rule, means that the employer:

3.5.2.a. Has obtained or is required to obtain authorization to do business in West Virginia; or

3.5.2.b. Operates a business or plant or maintains an office in West Virginia; or

3.5.2.c. Hires employees in West Virginia; or

3.5.2.d. Hires West Virginia residents to work at a West Virginia facility or office; or

3.5.2.e. Utilizes labor on a regular basis at a West Virginia facility for the employer.

3.5.3. An employer who meets one or more of the above stated criteria and otherwise meets the definition of “employer” may still be exempt from having to maintain workers’ compensation coverage under the provisions of W. Va. Code §23-2-1(b) or of section 4.3. of this rule.

3.6. “Employment” or “regularly employing” means engaging the services of a person or persons as an employee or as employees in return for wages or other compensation.

3.7. “Extraterritorial employee” means an employee who is not a resident of the State of West Virginia and who is subject to the terms and provisions of the workers’ compensation law or similar laws of a state other than the State of West Virginia.

3.8. “Independent contractor” means a person classified as an independent contractor pursuant to the West Virginia Employment Law Worker Classification Act, as set forth in W.Va. Code §21-5I-1 et seq., and the test established within W.Va. Code §21-5I-4 for classification of independent contractors.

3.9. “Insurance Commissioner” or “Commissioner” means the Insurance Commissioner of West Virginia as provided for in section one, article two, chapter thirty-three of the West Virginia Code.

3.10. “Old Fund” means the fund created pursuant to W. Va. Code §23-2C-2(l).

3.11. “Old Fund default” means being on the Insurance Commissioner’s default list as defined in W. Va. Code St. R. §85-11-1 et seq. as a result of owing money to the Old Fund.

3.12. “Payroll” means the term as defined in the most current approved filing of the Insurance Commissioner’s designated rating organization for workers’ compensation.

3.13. “Policy default” means a policyholder that had its policy cancelled as a result of a failure to comply with the terms of the policy.

3.14. “Policyholder” means an employer that has been issued a West Virginia workers’ compensation insurance policy by a private carrier and currently has coverage under said policy.

3.15. “Private carrier” means any insurer authorized by the Insurance Commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code.

3.16. “Self-insured employer” means an employer who is eligible and has been granted self-insured status under the provisions of W. Va. Code §23-2-9.

3.17. “Temporary” or “Temporarily,” as the term is used in W. Va. Code §§23-2-1(b)(3), 23-2-1a(a)(1), and 23-2-1c(c), and in this rule, means for a period not exceeding thirty (30) calendar days within any three hundred and sixty-five (365) day period.

3.18. “Transitory,” as the term is used in W. Va. Code §23-2-1a(a)(1) and this rule, means for a period not exceeding thirty (30) calendar days within any three hundred and sixty-five (365) day period.

3.19. “Temporary, intermittent and sporadic,” as the term is used in W. Va. Code §§23-2-1(b)(4) and in this rule, means for a period not exceeding ten (10) working days in any ninety (90) day period.

3.20. “Uninsured Employers’ Fund” means the fund created pursuant W. Va. Code §23-2C-2(o).

3.21. “Uninsured Employers’ Fund default” means being on the Insurance Commissioner’s default list, defined in W. Va. Code St. R. §85-11-1 et seq., as a result of owing money to the Uninsured Employers’ Fund.

3.22. “West Virginia workers’ compensation coverage” means workers’ compensation coverage which provides the employees of the insured employer, workers’ compensation benefits consistent with chapter twenty-three of the West Virginia Code and the rules promulgated thereunder.

W. Va. Code R. § 85-8-4 Employers Required to Maintain Workers’ Compensation Insurance; Exemptions; Application for Letter of Exemption

4.1. Duty to maintain insurance. Every employer is required to obtain West Virginia workers’ compensation coverage for the protection of its employees.

4.2. Every employer has a continuous and ongoing duty to maintain current information with its current private carrier about the employer’s business activities, including all information that could affect the employer’s payroll or premium.

4.3. Exemptions. An employer who is otherwise required to maintain mandatory West Virginia workers’ compensation coverage is exempt from the requirement in the following circumstances:

4.3.1. An employer of domestic services as defined in section 3.3 of this rule is not required to carry West Virginia workers’ compensation coverage for any individuals hired to perform such domestic services;

4.3.2. An employer of five (5) or fewer full-time employees in agricultural services is not required to carry West Virginia workers’ compensation coverage for those employees;

4.3.3. An employer who is a casual employer;

4.3.4. An employer who is a church;

4.3.5. An employer who is engaged in organized professional sports activities, including an employer of trainers and jockeys engaged in thoroughbred horse racing: Provided, That the employer must carry coverage for its employees who are not participating in the organized professional sports activities. For example, an employer of jockeys and trainers engaged in thoroughbred horse racing may exempt such jockeys and trainers, but if the same employer also employs a driver to transport horses and equipment, the driver must be provided coverage;

4.3.6. A volunteer rescue squad or volunteer police auxiliary unit organized under the auspices of a county commission, municipality or other government entity or political subdivision, or a volunteer organization created or sponsored by a government entity, political subdivisions or an area or regional emergency medical service board of directors in furtherance of the purposes of the emergency medical services act of article four-c [§§16-4C-1 et seq.], chapter sixteen of the West Virginia Code: Provided, That if any such employers have paid employees, they must provide West Virginia workers’ compensation for such paid employees; or

4.3.7. An employer of employees who are provided coverage for benefits under the federal Longshore and Harbor Workers’ Compensation Act, 33 U. S. C. §901, et seq., is exempt from having to carry West Virginia workers’ compensation coverage for such employees, but must provide West Virginia workers’ compensation coverage for employees who are not provided coverage for benefits under the federal Longshore and Harbor Workers’ Compensation Act.

4.4. Application for letter of exemption. An employer may apply to the Insurance Commissioner on forms supplied by the Insurance Commissioner for a letter of exemption from coverage. The Insurance Commissioner will review the application and all evidence submitted by the employer and, based on the provisions of chapter twenty-three of the West Virginia Code and this rule, may make such determination as the Insurance Commissioner deems proper. The Insurance Commissioner shall charge a processing fee for each application in the amount of twenty-five dollars ($25.00).

W. Va. Code R. § 85-8-5 Auditing; Inspections; and Payroll Reporting

Each private carrier may include reasonable auditing, inspection, and payroll reporting provisions in its policy, subject to the approval of the Insurance Commissioner.

W. Va. Code R. § 85-8-6 Employees Covered; Independent Contractors; Coverage Elections; and Assignment

6.1. General. A West Virginia workers’ compensation policy must cover all of the employees of the insured employer who are required to be provided West Virginia workers’ compensation coverage under chapter twenty-three of the West Virginia Code and the rules promulgated thereunder.

6.2. Independent Contractors.

6.2.1. A West Virginia workers’ compensation policy issued to an insured employer is not required to cover persons hired and classified as independent contractors pursuant to the West Virginia Employment Law Worker Classification Act, as set forth in W.Va. Code §21-5I-1 et seq., and the test established within W.Va. Code §21-5I-4 for classification of independent contractors.

6.2.2. Self-insured employers are not required to provide workers’ compensation coverage to persons hired and classified as independent contractors pursuant to the West Virginia Employment Law Worker Classification Act, as set forth in W.Va. Code §21-5I-1 et seq., and the test established within W.Va. Code §21-5I-4 for classification of independent contractors.

6.2.3. A person cannot simultaneously be classified as an employee and as an independent contractor of the same employer at the same time.

6.2.4. An employer is not required to classify a worker who meets the criteria contained within W.Va. Code §21-5I-4 as an independent contractor. The employer may choose to hire the worker as an employee. However, the terms should be clearly set forth at the outset so there is no confusion between the employer and the hired worker in regard to the hired worker’s status.

6.2.5. Independent contractors are not employees of employers required to be covered under chapter twenty-three of the West Virginia Code and are not eligible to receive payments from the Workers’ Compensation Uninsured Employer Fund established in W.Va. Code §23-2C-8.

6.3. Elections not to provide coverage. Elections not to provide coverage to certain individuals, such as partners of a partnership, sole proprietors, members and certain investors in limited liability companies or certain corporate officers, are governed by the provisions of W. Va. Code §§23-2-1(g) and 31B-12-1207.

6.3.1. An employer may elect not to provide coverage for certain corporate officers and all members of a corporation’s board of directors. A corporate officer or member of a corporate board of directors elected out of coverage by an employer is not entitled to the benefits of the West Virginia Workers’ Compensation Act, chapter twenty-three of the West Virginia Code.

6.3.1.a. The employers’ election out of coverage of officers of a corporation is limited to four (4) principal officers for the employer: (1) president; (2) vice president; (3) secretary; and (4) treasurer. The four (4) principal officers must be elected or appointed by the corporation’s board of directors as prescribed by the corporate bylaws. The employer may elect these four (4) officers out of coverage even though their activities include work that is ordinarily performed by an officer and work that is ordinarily performed by a worker, an administrator or other employee who is not an officer. An officer who performs both types of activities (officer/worker, administrator, or other employee who is not an officer) is deemed to be working in a “dual capacity.”

6.3.1.b. No other officer or assistant officer engaged in dual capacity may be elected out of coverage.

6.3.1.c. Dual capacity is determined by the duties of the officer/employee. For an officer other than the four (4) principal officers stated in subdivision 6.3.1.a of this rule to be eligible to be elected out of coverage, that officer cannot have duties and perform work that also would ordinarily be done by a worker, administrator or other employee who is not an officer. It is the employer’s burden to show that duties performed by officers or assistant officers other than the four (4) principal officers are not dual capacity activities and that the work could only be performed by an officer of a corporation. Examples of such showings are a vice president within a corporation (not the one vice president allowed to be elected out of coverage as one of the four (4) principal officers) who only attends board meetings and an assistant secretary whose only job is to affix the corporate seal to corporate papers.

6.3.1.d. Members of corporate boards of directors may be elected out of coverage by an employer, regardless of whether the member of the board of directors works in a dual capacity. It is the employer’s burden to show that the individual elected out of coverage is, in fact, a member of the board of directors and is, in fact, vested with the authority to manage the affairs of the corporation as a member of the employer’s board of directors. Members of corporate boards of directors who do not receive “gross wages” from the employer for their activities are not “employees” within the meaning of chapter twenty-three of the West Virginia Code and are not entitled to the benefits of chapter twenty-three of the West Virginia Code.

6.3.2. Certain members of a limited liability company may be elected out of coverage by an employer. “Limited liability companies” include those entities created pursuant to the Uniform Limited Liability Company Act of chapter thirty-one b of the West Virginia Code. These entities consist of all forms of limited liability companies, including, but not limited to, manager-managed limited liability companies, member-managed limited liability companies, foreign limited liability companies and professional limited liability companies.

6.3.2.a. Limited liability companies may elect not to include as an employee for purposes of workers’ compensation coverage a total of not more than four (4) persons. Each of the persons elected out of coverage by the employer is required to be acting in the capacity of a manager, officer or member of the limited liability company.

6.3.2.b. All covered members of limited liability companies which are treated as partnerships for federal income tax purposes are subject to the calculation of premiums on the members as provided for partners in a partnership in W. Va. Code §23-2-1b.

6.4. Manner of notification. In the event of an election under W. Va. Code §23-2-1(g) and section 6.3 of this rule, the employer shall provide to the private carrier written notice naming the positions that are not to be covered and the names and social security numbers of the individuals occupying those positions. The employer shall not include such individuals’ gross wages for premium purposes in future payroll reports. The partner(s), member/manager(s), proprietor(s) or corporate or executive officer(s) named in the notification is not deemed an employee within the meaning of chapter twenty-three of the West Virginia Code after such notice has been served.

6.4.1. Elections not to be covered made under section 6.3 of this rule are effective for the next policy period after the written notification in this section is received by the private carrier and each policy period thereafter with the same private carrier without subsequent written notification.

6.4.2. Elections not to be covered are valid only for the individuals named in the written notice provided for in section 6.4 of this rule. An election is not valid for any individual who may later hold the same position, office or title until an amendment to the election is made in accordance with this rule.

6.4.3. Amendments to a written notification of an election may be made only for the purpose of:

6.4.3.a. Changing the named person for any office or position previously reported on the election; or

6.4.3.b. Making an election for persons who were not previously employed as a sole proprietor, partner, officer, or member of the board of directors on the date the election was made; or

6.4.3.c. Making an election upon changing private carriers: Provided, That an employer must disclose the written notification, in its entirety, to the new private carrier prior to the effective date of the insurance policy; or

6.4.3.d. Adding a person who has previously elected not to be covered under the provisions of section 6.3 of this rule if the private carrier receives written notification sixty (60) days prior to the coverage period in which coverage is sought. If written notification is not received by the private carrier sixty (60) days prior to the coverage period in which coverage is sought, then coverage shall not be extended to such person requesting coverage beginning that coverage period, but shall instead be extended to the following coverage period. The written notification shall clearly identify the coverage period in which coverage is sought to begin.

6.5. Owners and officers; Coverage denials when the employer is in default.

6.5.1. Employers that are required, but fail to maintain West Virginia workers’ compensation coverage shall not be afforded coverage for the employers’ partners, members, proprietor or corporate or executive officers, nor shall coverage or benefits be afforded through the Uninsured Employers’ Fund or any other fund of the Insurance Commissioner to any individual for whom the employer may elect to forego coverage under the provisions of W. Va. Code §23-2-1(g) including, but not limited to, members of corporate boards of directors or certain members of a limited liability company.

6.5.2. Employers who are in Old Fund, Uninsured Employers’ Fund or policy default shall not be afforded workers’ compensation coverage for the employers’ partners, members, proprietor or corporate or executive officers, nor shall coverage or benefits be afforded through the Uninsured Fund or any other fund of the Insurance Commissioner to any individuals for whom the employer may elect to forego coverage under the provisions of W. Va. Code §23-2-1(g) including, but not limited to, members of corporate boards of directors or members of a limited liability company.

6.5.2.a. Coverage for the individuals specified in this subsection shall not be afforded if the employer is in Old Fund, Uninsured Employers’ Fund or policy default on the date of injury, and this exclusion will continue for the life of that injury. For example, if, at some time after the date of injury, the employer cures its default status, an individual specified in this subsection that incurs an injury on a date while the employer was in default status will not be covered for the injury that occurred during the period of default, and benefits will never be payable for that injury.

6.5.2.b. Benefits paid during periods of Old Fund, Uninsured Fund or policy default for individuals denied coverage under this subsection shall be considered overpayments.

6.6. Duty to report all payroll.

6.6.1. Each employer has a duty to report the entire payroll of all employees to its private carrier.

6.6.2. The private carrier may make its own initial decision regarding the determination of all issues relevant to the classification of employees, rates and payroll: Provided, That any employer that disagrees with the decision made by its private carrier and is not able to reasonably resolve the dispute may file a protest with the Insurance Commissioner’s designated rating organization for workers’ compensation, or, in the event that the dispute involves issues of State law which the rating organization refuses to resolve, with the Insurance Commissioner. All private carriers issuing final decisions to insured employers on matters discussed in this subsection shall provide clear instructions to the insured employer regarding the procedure for filing a protest to the private carriers’ decision.

6.6.3. Nothing in this subsection shall be construed to permit an employer to deviate from the procedures set forth in section 6.4 of this rule regarding elections not to provide coverage to certain individuals.

6.7. Limited partner. A “limited partner” as defined and provided by the Uniform Limited Partnership Act (W. Va. Code §47-9-1 et seq.) is not an employee of an employer which is a limited partnership subject to the mandatory or elective provisions of chapter twenty-three of the West Virginia Code, unless that person is employed in the service of the limited partnership for the purpose of carrying on the industry, business, service or work in which it is engaged.

6.8. Investors. A person who is solely an investor and who does not participate in the direction, administration, or control of a business or venture and its activities or investments is not an employee of an employer subject to the mandatory or elective provisions of chapter twenty-three of the West Virginia Code, unless that person is employed in the service of the business or venture for the purpose of carrying on the industry, business, service or work in which it is engaged.

W. Va. Code R. § 85-8-7 Extraterritorial Coverage and Related Issues

7.1. Extraterritorial employees working in West Virginia on a temporary basis. Extraterritorial employees performing work in the State of West Virginia on a temporary basis (i.e., for a period not exceeding thirty (30) calendar days in any three hundred and sixty-five (365) day period) are not required to be covered with West Virginia workers’ compensation coverage. If an extraterritorial employee is injured while working in this state on a temporary basis, the extraterritorial employee’s exclusive workers’ compensation remedy is under the laws of the state to which the extraterritorial employee is subject.

7.2. Extraterritorial employees working in West Virginia on a non-temporary basis. Extraterritorial employees who perform work in the State of West Virginia on a non-temporary basis (i.e., for a period exceeding thirty (30) calendar days in any three hundred and sixty-five (365) day period) and are not otherwise exempt from West Virginia’s workers’ compensation laws must be covered with West Virginia workers’ compensation coverage unless they enter into an agreement with their employer described under section 7.4 of this rule. An employer of extraterritorial employees has a duty to immediately advise its West Virginia private carrier when it reasonably believes it will be employing extraterritorial employees in the State of West Virginia on a non-temporary basis, so that premium can be adjusted accordingly.

7.3. Employment by a West Virginia employer outside of the State of West Virginia. Pursuant to West Virginia Code §23-2-1(b)(3) and subsection 4.3.3 of this rule, an employer that is otherwise subject to the provisions of chapter twenty-three of the West Virginia Code does not have to provide West Virginia workers’ compensation coverage for employees who perform work for the employer in a state other than the State of West Virginia on a non-temporary basis (i.e., for a period exceeding thirty (30) calendar days in any three hundred and sixty-five (365) day period): Provided, That the employer must provide West Virginia workers’ compensation coverage for any employee working in the State of West Virginia and who is not otherwise exempt from West Virginia’s workers’ compensation laws on a non-temporary basis (i.e., for a period exceeding thirty (30) calendar days in any three hundred and sixty-five (365) day period) unless the employee has entered into an extraterritorial agreement described in section 7.4 of this rule.

7.4. Agreements to be covered in a state other than West Virginia. An employer and an employee who are both subject to the workers’ compensation laws of a state other than West Virginia may enter into a written agreement in which the employer and employee both agree to be bound by the laws of the other state: Provided, That any employee entering into such an agreement must physically work for the employer entering into such agreement outside of the State of West Virginia for a period of not less than thirty (30) calendar days in any three hundred and sixty-five (365) day period, and the employer must comply with the workers’ compensation laws of the other state(s). Failure to meet these circumstances shall cause any agreement contemplated under this section to be void from its beginning: Provided, further, That an agreement entered into by an employer carrying West Virginia workers’ compensation coverage shall immediately be provided to the employer’s West Virginia carrier so that premium can be adjusted accordingly. If an employee who has entered into an extraterritorial agreement as described in this section is injured, the extraterritorial employee’s exclusive workers’ compensation remedy is under the laws of the state to which the employee has agreed to be bound.

7.5. Agreements to be covered in West Virginia. With the consent of its West Virginia private carrier, an employee and employer may agree to be bound by the workers’ compensation laws of West Virginia, regardless of where and for what amount of time the work is being performed: Provided, That this section shall not be construed in any manner to affect the workers’ compensation insurance requirements of a state other than West Virginia.

W. Va. Code R. § 85-8-8 The Workers’ Compensation Insurance Policy

8.1. 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(e), 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(e) 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.

W. Va. Code R. § 85-8-9 Notification of Issuance, Renewal or Termination of Coverage

9.1. Except as provided in section 9.2 of this rule, upon cancellation of a West Virginia workers’ compensation policy, every private carrier is required to notify the Insurance Commissioner’s designated rating organization of the cancellation at least ten (10) calendar days in advance of the effective date of termination of the coverage. The notification shall be on forms and/or other procedures developed by the Insurance Commissioner.

9.2. If an insured employer expressly requests in writing to the carrier that its West Virginia workers’ compensation policy be cancelled, the private carrier shall notify the Insurance Commissioner’s designated rating organization of said cancellation within ten (10) calendar days after receipt of the written request or any specified requested date of cancellation, whichever is later. Such a request by an insured employer shall not be deemed valid until received by the private carrier in writing.

9.3. Upon issuance or renewal of a West Virginia workers’ compensation policy, every private carrier is required to notify the Insurance Commissioner’s designated rating organization of said issuance or renewal within thirty (30) calendar days after the effective date of coverage, including the effective date of coverage and the date of expiration of the new policy. Notification shall be on forms and/or other procedures developed by the Insurance Commissioner.

9.4. If a carrier timely reports the information required by section 9.3 of this rule, it shall be deemed sufficient to meet the requirements of W. Va. Code §23-2C-15(f)(2) as this code provision relates to refusals to renew.

9.5. Failure of a private carrier to timely report information to the Insurance Commissioner as required by sections 9.1, 9.2 and 9.3 of this rule may subject the private carrier to a fine not to exceed five hundred dollars ($500.00) per occurrence of untimely reporting.

9.6. A private carrier may cancel a workers’ compensation policy for failure of the policyholder to timely remit adequate consideration upon the issuance of advance written notification to the policyholder of no less than ten (10) calendar days. The refusal of a policyholder to: (a) permit a premium audit by a private carrier; or (b) to pay any applicable surcharge or assessment that the carrier is required to collect pursuant to chapter twenty-three of the West Virginia Code, is considered “failure of the policyholder to timely remit adequate consideration” for purposes of this section. The effective date of cancellation shall be no earlier than ten (10) calendar days after issuance of advance written notice.

9.7. Except for the failure of the policyholder to timely remit adequate consideration, a private carrier may cancel a workers’ compensation policy for reasons consistent with the terms of the policy, upon the issuance of advance written notification to the policyholder of no less than thirty (30) calendar days. The effective date of cancellation shall be no earlier than thirty (30) calendar days after issuance of advance written notice.

9.8. A private carrier may decline to renew a workers’ compensation policy upon the issuance of advance written notification to the policyholder, or, if the policyholder purchased the policy through an insurer through an agent, the agent, of not less than sixty (60) calendar days prior to the expiration date of the current policy.

9.9. Any offer of renewal shall be sent to the policyholder, or, if the policyholder purchased the policy through an insurer through an agent, the agent, at least sixty (60) calendar days prior to the expiration date of the current policy.

9.10. All notifications and offers referenced in sections 9.5 through 9.9 of this rule must be forwarded to the insured or agent by mail. A cancellation, non-renewal or other termination of coverage must state with specificity the reason for and the specific effective date of the termination of coverage: Provided, That if the notification or offer is being sent to an agent, the carrier and agent may agree, pursuant to the provisions of W. Va. Code §39A-1-8, to send the notification or offer electronically. All private carriers must maintain proof or certificate of mailing for all notices sent.

W. Va. Code R. § 85-8-10 Rating Organizations

10.1. Consistent with the provisions of W. Va. Code §23-2C-18a(b), the Insurance Commissioner may designate a workers’ compensation rating organization that has been licensed in accordance with W. Va. Code §33-20-6 to assist the commissioner with carrying out his or her regulatory duties in regard to the workers’ compensation insurance market.

10.2. Every workers’ compensation private carrier shall: (1) record and report to the designated rating organization its workers’ compensation experience as set forth in the uniform statistical plan submitted by the designated rating organization and approved by the Insurance Commissioner; and (2) adhere to the uniform classification plan and uniform experience rating plan developed by the designated rating organization and approved by the commissioner.

10.3. Upon the Insurance Commissioner’s designation of a workers’ compensation rating organization to be utilized by all insurers, the loss cost, rule, or form filings made by the designated rating organization shall be utilized by every member of the rating organization without modification and as of the effective date of the relevant rating organization filing unless the member specifically makes a request in writing to the Insurance Commissioner to deviate from the same and receives approval to do so, or unless the member makes an exception basis filing pursuant to W. Va. Code §§33-6-8 or 33-20-4.

W. Va. Code R. § 85-8-11 Ratemaking

11.1. Beginning on the fiscal year commencing the first day of July 2008, all private carriers shall determine their base rates from the actuarially determined loss costs filed by and approved for the designated rating organization. All private carriers shall additionally adhere to the rating rules filed by and approved for the designated rating organization unless the private carrier makes an approved filing permitting deviation from the same.

11.2. The base rates charged by the private carriers may also include: (1) a reasonable provision for expenses related to the administration costs of the private carrier, including underwriting expenses, such as commissions to agents and brokers, other policy acquisition or servicing expenses, premium taxes, assessments, surcharges and fees, catastrophe reinsurance expenses, expenses associated with rating organizations, loss adjustment expenses not included in the loss costs, such as claims defense expenses, claim administration expenses, and other related expenses; (2) a reasonable profit and contingency provision to contribute to the private carrier’s surplus; and (3) all other ratemaking components consistent with industry practices. All such provisions shall be subject to the provisions of W. Va. Code §33-20-4. Any filing made to establish or amend a loss cost multiplier or multipliers which accounts for expenses is effective until such time as the private carrier makes another filing to adjust the same.

11.3. Private carriers may offer premium credits and debits through schedule rating plans which are consistent with industry practices. The ultimate premium net said credits and debits may not violate W. Va. Code §23-2C-18(c). All rating plans shall be subject to the filing requirements of chapter thirty-three of the West Virginia Code that are applicable to other commercial insurance lines. Any credit or debit applied to the insured shall reasonably reflect: (1) appropriate judgment of the private carrier as to the risk and/or exposure characteristics of the insured; (2) the private carrier’s interpretation of any statistical data; (3) the insured’s adoption or refusal to adopt relevant loss limiting practices; and (4) other relevant considerations.

11.4. Deductible plans. Deductible workers’ compensation plans are permitted subject to the approval of the Insurance Commissioner, including the underwriting standards used for issuing such plans. Under a deductible plan, an insured employer that fails to make a required deductible payment shall be deemed to be in default of the policy premium and subject to cancellation for its failure to timely remit adequate premium, but the default shall not affect the payment of all benefits in otherwise compensable claims made under a policy inclusive of a deductible plan. Under all deductible plans, the private carrier remains responsible for the payment of claims benefits and administration and defense of claims.

11.5. In addition to the premium charges determined, private carriers shall charge (1) all Deficit Reduction Fund surcharges as provided for in chapter twenty-three of the West Virginia Code and W. Va. Code St. R. §85-6-1 et seq.; (2) all regulatory surcharges required to fund the Insurance Commissioner’s regulation of the workers’ compensation industry as provided for in chapter twenty-three of the West Virginia Code and W. Va. Code St. R. §85-6-1 et seq.; and (3) all assessments made by the Insurance Commissioner for the funding of the Uninsured Employers’ Fund or the Private Carrier Guaranty Fund as defined in W. Va. Code §23-2C-1 et seq. All collected surcharges shall be remitted as directed by the Insurance Commissioner.

85CSR8

85CSR8

Series 09 Workers' Compensation Uninsured Employers' Fund

W. Va. Code R. § 85-9-1 General

W. Va. Code R. § 85-9-2 Definitions

W. Va. Code R. § 85-9-3 Application for Benefits from the UEF

W. Va. Code R. § 85-9-4 Subrogation

W. Va. Code R. § 85-9-5 Employer Liability

W. Va. Code R. § 85-9-6 Methods for Determining and Collecting Employer Liabilities Owed to the UEF

W. Va. Code R. § 85-9-7 Methods for Determining Assessments for the UEF

FILEC ## TITLE 85 EXEMPT LEGISLATIVE RULE WORKERS' COMPENSATION RULES OFSePOET -9 PM 2: 50 WEST VIRGINIA INSURANCE COMMISSIONER SERIES 9 OFFRO TER VIRGINIA SECRETARY OF STATE ### WORKERS' COMPENSATION UNINSURED EMPLOYERS' FUND #### §85-9-1. General.

1.1. Scope. -- These rules govern the administration of the Workers' Compensation Uninsured Employers' Fund pursuant to W. Va. Code §23-2C-8.

1.2. Authority. -- W. Va. Code §§23-2C-5(c)(2); 23-2C-22; 33-2-10(b) and 33-2-20(a).

Pursuant to W. Va. Code §§23-2C-5(c)(2) and 33-2-10(b), rules proposed by the Insurance Commissioner and adopted by the Industrial Council as related to workers' compensation under

chapter twenty-three of the West Virginia Code are not subject to W. Va. Code §§29A-3-9 through 29A-3-16, inclusive.

1.3. Filing Date. -- October 9, 2009.

1.4. Effective Date. -- November 8, 2009. #### §85-9-2. Definitions.

As used in this rule, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

2.1. "Commissioner" means the Insurance Commissioner of West Virginia or the Commissioner's designated third-party administrator.

2.2. "Industrial Council" means the Industrial Council created pursuant to W. Va. Code

§23-2C-5.

2.3. "Private carrier" means any insurer authorized by the Commissioner to provide workers' compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code.

2.4. "UEF" is the Workers' Compensation Uninsured Employers' Fund, as defined and established in W. Va. Code §§23-2C-2(0); 23-2C-7(a) and 23-2C-8.

2.5. "Workers' compensation coverage," as the term is used in this rule, means mandatory workers' compensation coverage pursuant to W. Va. Code §23-2C-1 et seq.

W. Va. Code R. § 85-9-3 Application for Benefits from the UEF

3.1. If an individual believes that he or she may be entitled to benefits under the UEF, then he or she shall complete an application for benefits from the UEF on a form created by the Commissioner. The Commissioner reserves the right to change the UEF application form from time to time as deemed necessary. Completion of the application for benefits is an absolute prerequisite for any entitlement to benefits from the UEF.

3.2. Upon receipt of an application for benefits, the Commissioner shall send a letter to the employer which notifies the employer that one of its employees has made a claim against the UEF.

3.3. The Commissioner shall determine whether: (1) the claimant's employer was required to carry workers' compensation coverage on the date of the injury or last exposure; and (2) if the claimant's employer was required to carry workers' compensation coverage on the date of the injury or last exposure, whether applicable workers' compensation coverage existed on the date of injury or date of last exposure.

3.3.a. If the Commissioner determines that: (1) applicable workers' compensation coverage existed on the date of injury or date of last exposure; or (2) the employer was not required to carry workers' compensation coverage on the date of injury of last exposure, then the Commissioner shall send the claimant a letter, copied to the employer, informing the claimant of this determination, and that the claim is not eligible to receive benefits from the UEF. Additionally, in the case that the Commissioner determines that applicable workers' compensation coverage existed on the date of injury or date of last exposure, the letter described in this subdivision shall also be copied to the insurance carrier which provided such coverage.

3.3.b. If the Commissioner determines that: (1) the employer was required to carry workers' compensation coverage on the date of injury or date of last exposure; and (2) no applicable workers' compensation coverage existed on the date of injury or date of last exposure, then the Commissioner shall send the claimant a letter, copied to the employer, informing the claimant of this determination, and that the claim is eligible to receive benefits from the UEF. If the claim is deemed eligible to receive benefits from the UEF, the Commissioner shall begin to administer the claim consistent with the provisions of chapter twenty-three of the West Virginia Code and the rules promulgated thereunder.

3.4. If, after rendering a determination as described in subdivisions a. and b., subsection

3.3. of this section, the Commissioner receives evidence to indicate that the determination was erroneous, the Commissioner reserves the right to enter a corrective determination remedying the previous erroneous determination.

3.5. Decisions made by the Commissioner as described in this section are protestable to the Workers' Compensation Office of Judges pursuant to the provisions of W. Va. Code §23-5-1 et seq. #### §85-9-4. Subrogation.

4.1. Pursuant to W. Va. Code§23-2A-1, the Commissioner, on behalf of the UEF, has a right to statutory subrogation against any claim made by a UEF claimant, his or her dependents or personal representatives, against a third-party for the injury or exposure from which the claim arose: Provided, That this statutory subrogation is only to the extent of the actual monetary benefits paid or to be paid to the claimant from the UEF.

4.2. Pursuant to W. Va. Code §23-2A-1(d), it is the duty of the claimant, his or her representatives or dependents, or any attorney representing the claimant or his or her dependents or representatives, to provide the Commissioner reasonable notice of a claim being made against a third-party, as well as reasonable notice prior to the disbursement of any recovery. Failure to provide such notice shall waive an attorney's right to be paid reasonable attorney fees out of the subrogation amount and shall further give rise to a cause of action by the Commissioner on behalf of the UEF against the claimant, his or her representatives or dependents or the attorney who failed to provide such reasonable notice. #### §85-9-5. Employer Liability.

5.1. Pursuant to W. Va. Code §23-2C-8, an employer of a claimant who receives benefits from the UEF is liable to the UEF for all expenditures from the UEF on behalf of its injured employee, including, but not limited to:

5.1.a. All benefits, including all medical and indemnity payments, made from the UEF ;

5.1.b. All claims administration costs related to the administration of claim(s) against the UEF;

5.1.c. All attorney fees related to defense of claim(s) made against the UEF; and

5.1.d. Interest on the above expenditures, as calculated under W. Va. Code §23- 2-13.

5.2. An employer shall remain on the Workers' Compensation Default List as defined in 85CSR11, until it pays all of its liability to the UEF, enters into a full and final settlement with the Commissioner for its liability to the UEF or enters into a repayment agreement with the Commissioner for its liability to the UEF and remains in good standing. The employer will be subject to all of the sanctions associated with being on the Default List, including, but not limited to:

5.2.a. Having a posting placed on the employer's front door informing its employees that the employer is uninsured and therefore may be sued by its employees for work related injuries;

5.2.b. A penalty of up to $10,000; and

5.2.c. Being subject to an action in the Circuit Court of Kanawha County to enjoin the employer from continuing business operations.

5.3. If an employer incurs liability to the UEF after being removed from the Default List and the employer fails to remit payment for such liability to the UEF on a timely basis, as described in subsection 6.1. of this rule, the employer will be placed on the Default List until the liability is fully paid or otherwise resolved pursuant to section 6. of this rule. #### §85-9-6. Methods for Determining and Collecting Employer Liabilities Owed to the UEF.

The Commissioner shall have discretion to utilize one or more of the following methods to determine and collect amounts owed to the UEF:

6.1. As benefit payments are made from the UEF, issue pay orders to a liable employer ordering them to reimburse the UEF, within a specific and reasonable amount of time, as selected by the Commissioner, for the amounts described in subsection 5.1. of this rule;

6.2. Enter into repayment agreements with an employer to reimburse the UEF for the amounts described in subsection 5.1. of this rule, and then enter pay orders to the employer as described in subsection 6.1. of this section;

6.3. Using generally accepted accounting and actuarial principles, reduce the estimated amount of a claim or claim(s) against the UEF, including all the amounts described in subsection

6.1. of this rule, to a present value reserve for the claim, and then deem the responsible employer to be liable for this amount. The Commissioner may then pursue this amount as a judgment against the employer, including filing a civil action in Circuit Court against the employer, seeking a judgment lien against the employer, and all other accepted methods of collection as set forth in article two, chapter twenty-three of the West Virginia Code and 85CSR11.

6.4. The Commissioner shall have discretion to enter into a full and final settlement with an employer for its liability to the UEF or waive amounts owed to the UEF as part of a repayment agreement or a full and final settlement with the employer. #### §85-9-7. Methods for Determining Assessments for the UEF.

7.1. If at any time the Commissioner determines, based on generally accepted accounting and actuarial principles, despite the collection of, or projected collection of, amounts owed to the UEF, that: (1) the UEF has incurred a deficit balance; or (2) it appears imminent that it will incur a deficit balance, then, in order to maintain the solvency of the UEF, the Commissioner may, pursuant to W. Va. Code §23-2C-8, impose assessments against either private carriers, self-insured employers, or both, in the following manner:

7.1.a. Monthly or quarterly assessments against workers' compensation private carriers that reflect 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: Provided, this assessment may be collected by each private carrier from its policy holders in the form of a policy surcharge, and private carriers will have no liability for the amounts of this assessment which are not paid by employers defaulting on their premium payments;

7.1.b. Monthly or quarterly assessments against self-insured employers that result in an equitable distribution of costs among the self-insured employers and is based upon expected annual expenditures for claims.

7.2. Prior to imposing the assessments described in this section, the Commissioner shall provide at least sixty (60) days notice to the entities being assessed. Notice shall be provided in writing to all entities being assessed and through other means deemed appropriate by the Commissioner.

PUBLIC HEARING JULY 30, 2009

OFFICES OF THE WEST VIRGINIA INSURANCE COMMISSIONER WORKERS' COMPENSATION INDUSTRIAL COUNCIL

TITLE 85, SERIES 9 WORKERS' COMPENSATION UNINSURED EMPLOYERS' FUND

Transcript of the Public Hearing held on Thursday, July 30, 2009, at 3:00 p.m., Offices of the West Virginia Insurance Commissioner, 1124 Smith Street, Room 400, Charleston, West Virginia.

Industrial Council Members Present:

Bill Dean, Chairman Kent Hartsog Dan Marshall Walter Pellish (via telephone)

Chairman Bill Dean: This is Title 85, Series 9, Workers' Compensation Uninsured Employers' Fund. Ryan, do you have anything you would like to comment on?

Ryan Sims (Associate Counsel, OIC): No. We did not receive any written comments on Title 85, Series 9.

Chairman Dean: Does anybody from the general public have anything they would like to comment on? We will close the public hearing on Title 85, Series 9. [There were no comments.] ## Industrial Council Meeting PUBLIC HEARING Title 85, Series 9 WORKERS' COMPENSATION UNINSURED EMPLOYERS' FUND Offices of the West Virginia Insurance Commissioner July 30, 2009 Name Address Telephone Number Group Affiliation Do you desire to address the Council?

Agenda item to which you desire to speak - !

Series 10 Primary Contractor Liability

W. Va. Code R. § 85-10-1 General

1.1. Scope. -- This rule implements the provisions of W. Va. Code §23-2-1d, regarding the liability of a primary contractor for payments due to the workers' compensation commission by a subcontractor under certain circumstances. The provisions of this rule shall apply generally to all work done by contract; the person, firm, corporation or other legal entity, which lets a contract for such work shall be responsible primarily and directly for all premiums and related obligations upon the work. This rule, as amended, is applicable only to contracts that are entered into or extended on or after the effective date of this rule.

1.2. Authority. -- W. Va. Code §§23-1-1a; and 23-2-1d. Pursuant to W. Va. Code 23-1-1a(j)(3), rules adopted by the board of managers and the commission are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- May 27, 2005.

1.4. Effective Date. -- July 1, 2005.

W. Va. Code R. § 85-10-2 Purpose of Rule

2.1. 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.

W. Va. Code R. § 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.

W. Va. Code R. § 85-10-4 Primary Contractor's Liability; Generally

4.1. The liability of the primary contractor, under the provisions of W. Va. Code §23-2-1d, for the payments due to the workers' compensation commission by its subcontractors can arise in only two ways.

4.1.a. If the subcontractor is not in good standing with the commission on the first date on which it begins performance of its work under the contract, then the primary contractor will become liable for any payments due by the subcontractor to the commission after the subcontractor begins the performance of its work. The primary contractor will not be liable for the payments due to the commission by the subcontractor, which became due prior to the start of the subcontractor's work.

4.1.b. The second way in which the primary contractor can become liable to the commission for the subcontractor's payments is if the subcontractor loses its good standing with the commission after the subcontractor begins the performance of its work and throughout the life of the contract. That is, a subcontractor can be in good standing with the commission at the start of its performance under the contract, but later lose that good standing when it fails to make a report or a payment. In this situation, the primary contractor can become liable for the debts of the subcontractor to the commission unless the primary contractor takes certain actions. In this situation, the primary contractor becomes liable only for certain of the payments that become due after the default. The primary contractor is not liable for any payments that were due prior to that default except as provided for in subdivision 4.1.a. The determination of which payments the primary contractor becomes liable for is set forth in subsection 5.3.

W. Va. Code R. § 85-10-5 Avoiding Primary Contractor Liability

5.1. In order to avoid liability under subdivision 4.1.a, the primary contractor must obtain a valid, current certificate of good standing for the subcontractor. The certificate of good standing can be obtained either from the commission or from the subcontractor. If the certificate of good standing was issued for some earlier quarter than the calendar quarter immediately preceding the current quarter, then the certificate cannot be relied upon. The certificate of good standing is valid only if it is issued for the immediately preceding quarter; provided, however, since current premium tax payments are only due within thirty (30) days after a quarter ends, if a certificate of good standing is issued during the first month of any quarter, then it will be considered valid if issued, in whole or in part, for the next preceding quarter. In addition, if the proffered certificate of good standing is fraudulent on its face, then the primary contractor can become liable under subdivision 4.1.a.

5.2. In order to avoid liability under subdivision 4.1.b, the primary contractor must first give notice to the commission that the primary contractor wishes to be notified by the commission if the subcontractor defaults. The primary contractor must provide the commission with the subcontractor's and the primary contractor's correct name, address, and federal employers' identification number (FEIN) or its equivalent as well as the policy numbers that are assigned by the commission to the primary contractor and to the subcontractor. The primary contractor is encouraged to use the attached form for this purpose. While other forms of notice, including computer print-outs, will be accepted, such notices must contain, at a minimum, the information and signature requested in the form. The primary contractor may use additional sheets attached to the form to indicate other subcontractors who are working at the same job site. If the primary contractor's notice is accurate and complete, then, before liability can be imposed by the commission under the provisions of W. Va. Code §23-2-1d, the commission must notify the primary contractor of the subcontractor's default in order to provide an opportunity for the primary contractor to take corrective action. The liability then begins as specified in subdivision 5.3.b. Notice of default by the commission to the primary contractor is complete upon placing the notice in the first class United States mail, postage prepaid, and addressed to the primary contractor at the address furnished to the commission by the primary contractor.

5.3. Determination of the beginning date of the primary contractor's liability under subdivision 4.1.b shall be accomplished as follows.

5.3.a. Before any employer attains default status, these actions must either occur or fail to occur as indicated. In the usual course for a usual employer account, payment is due by the last day of the month following the quarter for which payment is being made. For instance, for the first fiscal calendar quarter (July through September), the payment is due on or before October 31st. If payment is not made by that date, the commission is obligated to issue a delinquency notice to the employer informing it, among other things, that it is now delinquent and that payment must be made on or before the last day of the third month following the quarter for which payment is due. In the above example, payment would be due on or before December 31st. Failure to make payment by that date places the employer in default if the delinquency notice by the commission was timely made. The delinquency notice must be issued within sixty (60) days of the end of the quarter for which payment is due. In the above example, the delinquency notice must be issued on or before November 30th. These requirements are contained in W. Va. Code §23-2-5(b).

5.3.b. For purposes of primary contractor liability, in the example set forth in subdivision 5.3.a, the notice of default by the commission to the primary contractor cannot be issued until sometime in January. This is the beginning of the second quarter after the quarter for which payment is due. The subcontractor does not become default until December 31st and, thus, no notice of default could be issued before that date. According to W. Va. Code §23-2-1d(b)(2), unless the primary contractor takes corrective action, the primary contractor's liability would then begin with the first day of the third quarter following the end of the quarter for which payment is due; that is, for the quarter beginning on April 1st. The primary contractor's liability for its contractor’s payments begins with payments due in that third quarter. Payments that were due for the July through September quarter, payments that were due for the October through December quarter, and payments that were due for the January through March quarter are not the liability of the primary contractor under subdivision 4.1.b.

5.3.c. It sometimes occurs, for a variety of reasons, that the delinquency notice to the employer that is described in subdivision 5.3.a is not timely made within sixty (60) days. Should that happen regarding a subcontractor affected by W. Va. Code §23-4-1d, then the time period described in subdivision 5.3.b may be affected. W. Va. Code §23-2-5(b), is understood to require at least a thirty (30) day notice to the employer before it shall be in default status. If in the example set forth in subdivisions 5.3.a and 5.3.b, the delinquency notice was not issued until December 14th (i.e., the seventy-fifth day), then the payment in order to avoid default would not be due until January 13th (thirty days from the issuance of the late delinquency notice). Default would begin on January 14th. Even later issuance of the delinquency notice would move the default date back accordingly. In the event a notice of default is issued less than thirty (30) days before the end of the quarter, liability will not be imposed upon the primary contractor until the first day after the end of the next quarter. Accordingly, in the example set forth in subdivisions 5.3.a and 5.3.b, if the notice is issued between March 2nd and March 31st, the primary contractor's liability would not begin until July 1st.

5.3.d. If an employer is required to file its payroll report and pay its premium taxes on a basis other than quarterly, then the time periods for curing delinquencies and the primary contractor’s notification of the subcontractor’s default shall be accordingly adjusted.

5.4. The corrective action that a primary contractor can take to avoid subdivision 4.1.b liability is either to arrange payment of the amounts due to the commission prior to the start of the primary contractor's liability or to terminate the subcontract prior to that date. Payments may be made by the subcontractor, the primary contractor, or other third party. A reinstatement agreement covering all of a subcontractor's periods of delinquency and default may be considered based upon the best interests of the fund.

5.4.a. The commission may enter into a reinstatement agreement with the primary contractor and subcontractor as co-signators. The primary contractor becomes liable for payment to the fund of the premium taxes as if the premium taxes were incurred by the primary contractor.

5.5. In the event that the primary contractor elects to terminate its subcontract, W. Va. Code §23-2-1d, provides that a subcontractor's failure to make required payments is good and sufficient cause to terminate the contract regardless of any contrary provision in the contract.

5.6. Exclusively for the purposes of W. Va. Code §23-2-1d, and of this rule, a certificate of good standing issued by the commission furnishes an irrebuttable presumption that the subcontractor is in good standing with the commission for the period in question. The presumption does not apply to any other section of chapter 23 of the W. Va. Code. Even if it is later determined that the certificate was issued in error, for any reason, the certificate prevents the imposition of the subdivision 4.1.a liability. For example, if clerical error resulted in the commission issuing a certificate of good standing for a subcontractor whose record with the commission clearly shows it to be in default, the certificate still operates to protect the primary contractor from liability. The erroneously issued certificate does not affect the subcontractor's own liability to the commission. Similarly, if the commission's records indicated that a subcontractor was in good standing and a certificate is then issued, then a later determination, which shows that the subcontractor was not in fact in good standing, does not invalidate the certificate with regard to the primary contractor. This is the case even if the subcontractor acted fraudulently or criminally to conceal its actual record, unless the primary contractor acted in concert to aid the fraud.

5.7. Under this rule no liability will arise if all of the subcontractor's employees are appropriately and lawfully covered by another state's or jurisdiction's workers' compensation laws. Hence, if an Ohio employer provides workers' compensation coverage through the Ohio state fund to its employees who may be sent into West Virginia on a temporary or transient basis to work on a given contract, then neither this rule nor W. Va. Code §23-2-1d, are applicable. If any one of those employees is to be covered or must be covered by West Virginia's workers' compensation program, then the gross wages for that employee must be reported and premium taxes paid. In that case, all of the provisions of this rule would be applicable to such a subcontractor to the extent of the reportable gross wages.

W. Va. Code R. § 85-10-6 Extent of Liability

6.1. The liability which the primary contractor incurs, under the provisions of W. Va. Code §23-2-1d, is the obligation to pay to the commission the true and correct amount of premium taxes, premium deposit, late reporting and payment penalties, and any interest thereon, as well as administrative charges and attorney fees and costs of any actions, that the subcontractor owes to the commission.

6.2. In determining the amount of payments due to the commission, the commission is not limited to the amounts of gross wages reported by the subcontractor. Rather, the commission may audit the wage records of the employer or other pertinent records and determine for itself the amounts owed to it. From this audit, the true and correct amount of premium taxes, premium deposit, interest and late reporting and payment penalties will be determined in calculating the primary contractor's liability.

6.3. Under the provisions of W. Va. Code §23-2-1d, the primary contractor is liable only for the payments due from the subcontractor for those employees who are performing work under its contract. Payments for gross wages for employees who are engaged in other work for the subcontractor unrelated to the contract in issue will not become the liability of the primary contractor.

6.4. If the same employees of a subcontractor split their time among a number of jobs some of which are not related to the contract in issue, then the liability imposed by this rule extends only to payments due for the gross wages earned as a result of working under the contract in issue. It shall be the primary contractor’s burden to prove that employee(s) of a subcontractor split time among jobs which were not related to its contract with the subcontractor.

6.5. If the subcontractor's default occurs because of a breach of a prior reinstatement agreement, then under the terms of the agreement the full amount of the liability becomes due. However, in this event, the primary contractor will not be liable for any portion of the reinstatement agreement's liability which arose prior to the term or extension of the contract including any interest due on the principal of the agreement which was earned during the term or extension of the contract after the effective date of this rule.

6.6. In the event that the primary contractor makes payment to the commission in the place of the subcontractor, then the primary contractor has a legal right to seek reimbursement or indemnification from the subcontractor for the amounts paid on its behalf to the commission. In addition, the primary contractor may recover its costs of action and attorney fees in seeking such reimbursement or indemnification. Such legal right is not subject to resolution by the commission. Recovery must be made from the subcontractor or through the state's judicial system.

W. Va. Code R. § 85-10-7 Collections Efforts

In the event that the primary contractor does not readily make any payment due under this rule, the commission is authorized to take collections actions for payments by the primary contractor under the provisions of W. Va. Code §23-2-5a. Reference to that section and the rules promulgated under it should be made by the primary contractor.

W. Va. Code R. § 85-10-8 Appeal Process

Any primary contractor affected by this rule or W. Va. Code §23-2-1d, who wishes to contest any decision made by the commission may do so under the provisions of W. Va. Code §23-2-17. The rule implementing that section requires the filing of a formal request for reconsideration, and following reconsideration decision, a petition within thirty days of the primary contractor's receipt of notice of the disputed decision or action or reconsidered decision or, in the absence of such receipt, within sixty days of the date of the commission's making such disputed decision or taking such disputed action or making such reconsideration decision. (See 85 CSR7, “Rules for Selected Hearings”.)

W. Va. Code R. § 85-10-9 Severability If any provision of this rule or the application thereof to any entity or circumstance shall be held invalid, such invalidity shall not affect the provisions or the applications of this rule which can be given effect without the invalid provisions or application and to this end the provisions of this rule are declared to be severable

NOTIFICATION REQUEST

DEFAULT OF SUBCONTRACTOR

The undersigned primary contractor hereby notifies the workers' compensation commission that it has entered into a subcontract(s) and that it desires to receive notice from the workers' compensation commission if the subcontractor(s) defaults on any payments due to the workers' compensation commission.

(Please provide the following information:)

PRIMARY CONTRACTOR'S NAME:_____________________________________________________

ADDRESS TO WHICH NOTICES ARE TO BE SENT:_______________________________________

PRIMARY CONTRACTOR'S POLICY NUMBER:___________________________________________

PRIMARY CONTRACTOR'S FEIN1 NUMBER: ____________________________________________

SUBCONTRACTOR'S COMPLETE FORMAL NAME (AND INCLUDE ANY TRADE NAME OR TRUE NAME OR A.K.A.) _____________________________________________________________________________________ SUBCONTRACTOR'S ADDRESS: _______________________________________________________ _____________________________________________________________________________________ SUBCONTRACTOR'S POLICY NUMBER:________________________________________________ SUBCONTRACTOR'S FEIN 1 NUMBER:__________________________________________________ GIVE A BRIEF DESCRIPTION OF CONTRACT INCLUDING WORKSITE(S): _____________________________________________________________________________________ _____________________________________________________________________________________ EXPECTED LENGTH OF THE CONTRACT (BEGINNING DATE & ENDING DATE: _____________________________________________________________________________________ (Additional sheets may be attached for additional subcontractors.)

DATE: SIGNATURE:__________________________________

PRINTED NAME:_____________________________________________________________________

POSITION WITH PRIMARY CONTRACTOR: _____________________________________________ 1 If employer does not have an FEIN, please provide social security number.

Series 11 Employer Default, Enforcement, Collections and Related Matters

W. Va. Code R. § 85-11-1 General

1.1. Scope. -- This rule implements the provisions of W. Va. Code §§23-1-13; 23-2-1, 1b, 1d, 5, 5a, 5b, 5c, 5d, 8, 9, 13, 14, 15 and 17; 23-2C-19; and 33-2-22, regarding the determination of workers’ compensation employer default; enforcement of compliance by employers with West Virginia’s workers’ compensation laws; and collection of obligations arising from those requirements and others.

1.2. Authority. -- W. Va. Code §§23-2C-19(g) and 22; 33-2-10(b); and 33-2-21(a).

Pursuant to W. Va. Code §23-2C-5(c)(2), workers’ compensation rules proposed by the Commissioner and approved by the Industrial Council are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1, et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- April 10, 2012.

1.4. Effective Date. -- May 10, 2012.

W. Va. Code R. § 85-11-2 Definitions

2.1. As used in this rule, the following terms, words, and phrases have the meanings stated unless in any instance where such term, word, or phrase is employed the context expressly indicates that another meaning is intended.

2.2. “Monthly base premium” means the product of the employer’s estimated monthly payroll for each job classification and the current corresponding West Virginia National Council on Compensation Insurance, Inc. (NCCI) loss cost for each classification, without modification by any other factors such as, but not limited to, tiering, experience modification or scheduled rating.

For example, an employer’s monthly payroll is $10,000, with $5,000 of the payroll representing job classification “A” under the current NCCI loss costs, at a rate of $10 per $100 of payroll, and $5,000 of the payroll representing job classification “B” under the current NCCI loss costs, at a rate of $5 per $100 of payroll. The monthly base premium would be $750 ($10 X $50, or $500, for classification “A”; and $5 X $50, or $250 for classification “B”). In turn, the monthly base premium would be $750 ($500 for classification “A” plus $250 for classification “B”).

2.3. “Default” or “default employer” means an employer that:

2.3.a. Has an outstanding balance or liability to the Old Fund;

2.3.b. Has an outstanding balance or liability to the Uninsured Employers’ Fund, including owing money to the fund for benefit payments, administration costs or attorney fees as well as any fines owed to the fund for being uninsured pursuant to W. Va. Code §23-2C-8(d)(3) and this rule;

2.3.c. Fails to carry West Virginia workers’ compensation coverage;

2.3.d. Is a former self-insured employer whose status has been revoked but who has remaining unsecured obligations pursuant to its previous status as a self-insured employer; or

2.3.e. Has any other outstanding obligation, balance, debt or other liability pursuant to chapter twenty-three of the West Virginia Code or rules promulgated thereunder.

2.4. “Employee” has the meaning ascribed to that term by W. Va. Code §§23-2-1 and 23-2-1a.

2.5. “Employer” means either or both of the following:

2.5.a. The term “employer” has the meaning ascribed to that term by W. Va. Code §23-2-1, which includes, but is not limited to, any individual, sole proprietor, firm, partnership, limited partnership, limited liability company, joint venture, association, corporation, company, organization, receiver, estate, trust, guardian, executor, administrator, government entity or any other entity regularly employing another person or persons for the purpose of carrying on any form of industry, service or business in this state, and as such is required to carry West Virginia workers’ compensation coverage.

2.5.b. The term “employer” also means, for the purposes of this rule’s enforcement provisions at subsection 6.1 and sections 7., 8. and 10., any owners, officers, members, partners and directors of the employer.

2.6. “Estimated monthly payroll” means:

2.6.a. If available, the estimated annual payroll for the current policy year as provided by NCCI to the Commissioner, divided by twelve;

2.6.b. If the amount described in subdivision a. of this subsection is not available, then the employer’s estimated monthly payroll based on other available information, including, but not limited to, information available on wages reported through West Virginia’s unemployment system.

2.7. “Commissioner” means the Insurance Commissioner of West Virginia.

2.8. “Payment” means any amount of money owed by an employer pursuant to chapter twenty-three of the West Virginia Code or any rules promulgated there under.

2.9. “Old Fund” means the fund created pursuant to W. Va. Code §23-2C-2(l).

2.10. “Self-insured” or “Self-insured employer” means an employer which is eligible and has been granted self-insured status under the provisions of W. Va. Code §23-2-9.

2.11. “Uninsured Employers’ Fund” means the fund created pursuant to W. Va. Code §§23-2C-2(o) and 23-2C-8.

2.12. “West Virginia Code,” “W. Va. Code” and “Code” mean the West Virginia Code of 1931, as amended.

2.13. “Workers’ Compensation Default List” or “Default List,” means a paper and/or electronic database maintained by the Commissioner which identifies employers who are in default. This list may be made accessible in the form of either a computerized database or other databases.

2.14. “West Virginia workers’ compensation coverage” means insurance coverage an employer is required to maintain under chapter twenty-three of the West Virginia Code.

W. Va. Code R. § 85-11-3 Default Employer not Permitted to Dissolve or Withdraw

3.1. The Commissioner shall not certify to the Secretary of State of West Virginia that all payments and interest due the Commissioner under chapter twenty-three of the West Virginia Code or the rules promulgated thereunder by an employer have been made until the employer cures any default or makes arrangements satisfactory to the Commissioner for that cure or until all payments due by the employer under chapter twenty-three of the West Virginia Code or the rules promulgated thereunder have been made or arranged for by agreement with the Commissioner.

3.2. Pursuant to W. Va. Code §23-2-5a, the Secretary of State shall withhold the issuance of any certificate of dissolution or withdrawal in the case of any corporation organized under the laws of West Virginia or organized under the laws of any other state and admitted to do business in this state until the Secretary of State receives the subsection 3.1 certification.

W. Va. Code R. § 85-11-4 Notice to Employees of Default Employers

4.1. Upon discovery that an employer is not maintaining West Virginia workers’ compensation insurance, the Commissioner shall issue a written notice to the employees of that employer. The notice shall be in the form prescribed by the Commissioner.

4.2. Contents of notice. -- The notice shall inform the employees of the default of their employer and the effective date thereof. The notice shall also inform the employees of the legal consequences, as it affects the employees, of the default or termination of their employer. The notice shall also contain the following statement which shall be printed in conspicuous type: “Any person who shall, prior to the reinstatement to good standing of the said employer, as hereinbefore provided for, or prior to sixty (60) days after the posting of this notice, whichever shall first occur, remove, deface, or render illegible this notice, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined one thousand dollars ($1,000.00).”

4.3. Posting the notice. -- The Commissioner shall arrange for the posting of the notice as described in this section in a conspicuous place at the chief works of the employer, as the same appears in the records of the Commissioner, or such other location(s) as may be deemed to provide adequate notice to employees of the employer. If the chief works of the employer cannot be found or identified, then the notice as described in this section shall be posted at the front door of the courthouse of the county in which the chief works are located, according to the Commissioner’s records. A copy of the notice shall also be sent to the office of the secretary of state for publication in the State Register.

4.4. The Commissioner may require any sheriff, deputy sheriff, or other official of the state of West Virginia, who may be authorized to serve civil process, to post the notice as described in this section and to make return thereof of the fact of such posting to the Commissioner, and any failure to post any notice within ten (10) days after he or she receives the same from the Commissioner, without just cause or excuse, shall constitute a willful failure or refusal to perform a duty required of him or her by law within the meaning of W. Va. Code §61-5-28.

4.5. Fee for posting. -- Any official posting the notice as described in this section shall be entitled to the same fee as is now or may hereafter be provided for the service of process in suits instituted in courts of record in the state of West Virginia, which fee shall be paid by the Commissioner out of any funds at his or her disposal, but shall be charged by him or her against the account of the employer to whose default such notice relates.

W. Va. Code R. § 85-11-5 Audits of Employers

5.1. Pursuant to W. Va. Code §§23-1-1b(g)(20), 23-2-2, and 33-2-22(a), the Commissioner has authority to perform audits of any employer in order to determine the amount of money owed to the Old Fund. The audits shall be in a manner as prescribed by the Commissioner, and employers shall be required to comply with all requirements of such audits. Any employer refusing to comply with a Commissioner audit as described in this subsection shall be deemed in default based on the estimated liability to the Old Fund as calculated by the Commissioner based on available and credible information, and shall further be subject to all enforcement provisions as contained in chapter twenty-three of the West Virginia Code and the rules promulgated thereunder.

5.2. Pursuant to W. Va. Code §§23-1-8, 23-2-2 and 33-2-22(a), the Commissioner is entitled to hold administrative hearings, conduct depositions, and issue subpoenas for production of persons for deposition or documents for inspection in order to obtain relevant information for determination of amount owed to the Old Fund. All administrative hearings or depositions shall be convened and conducted in accordance with section 12 of this rule.

W. Va. Code R. § 85-11-6 Methods of Collection of Payments and Enforcement

6.1. Following the default of an employer, in addition to the remedies described in previous sections of this rule, the Commissioner shall have available to him or her the following remedies which shall each be described more fully below:

6.1.a. Initiation of a civil action against the employer.

6.1.b. Filing of a lien or liens enforceable against all the property of the employer.

6.1.c. Initiation of an action in the Circuit Court of Kanawha County to enjoin the employer from continuing to carry on the business in which its liability was incurred or, in the alternative, to accept a bond from the employer.

6.1.d. Filing a claim in any bankruptcy proceeding or in a receivership or insolvency proceeding which involves the employer.

6.1.e. Informing the Secretary of environmental protection when an employer is in default prior to the director’s issuance of a coal mining permit so that the permit may not be issued until the applicant is in compliance with chapter twenty-three of the West Virginia Code or the Rules promulgated thereunder, as provided in W. Va. Code §22-3-8.

6.1.f. Pursuant to W. Va. Code §§23-1-1b(g)(16), 23-2C-15(d), and 23-2C-19(e) and 85CSR32 §1 et seq., informing the director, commissioner or head of any state agency when an employer is in default, so that the director may take appropriate remedial action against the employer in regard to a contract, license, permit, certificate or other authority to conduct a trade, profession or business.

6.1.g. Requesting a criminal prosecution of any person, firm, corporation or other employer whose non-compliance with chapter twenty-three of the West Virginia Code or the rules promulgated thereunder is believed to be in violation of W. Va. Code §61-3-24e and section 15 of this rule.

6.2. In addition to the other remedies set forth herein, the Commissioner may, consistent with applicable West Virginia statutory and case law, also initiate a proceeding or proceedings in the name of the state to distrain upon any personal property, including intangible property, of any default employer.

6.3. In every case noted in this section where a monetary sum is to be collected, the Commissioner shall include a demand for interest as specified in section 13 of this rule.

6.4. The remedies set forth in subsection 6.1 of this section are described in greater detail in later sections of this rule.

W. Va. Code R. § 85-11-7 Statutory Lien

7.1. Pursuant to W. Va. Code §§23-2-5a(b) and 23-2C-19(f), any payment and interest thereon due and unpaid under chapter twenty-three of the West Virginia Code and the rules promulgated thereunder, including, but not limited to, money owed to the Old Fund, money owed to the Uninsured Employers’ Fund and money owed pursuant to liabilities accrued by the employer while the employer was self-insured constitutes a lien enforceable against all of the property of the owing employer. The property subject to the lien includes all of the employer’s real estate, personal property of all types, money and combinations thereof.

7.2. In accordance with W. Va. Code §§23-2-5a and 38-10C-2, the Commissioner shall file a written notice of the lien as described in this section in the office of the clerk of the county commission of the county in which the property of the employer or lienee against whom such lien is claimed, is situate, or if the employer’s or lienee’s property is situated in more than one county, then in each such clerk’s office in each such county. The notice shall certify the amount of money that is owed by the employer.

7.3. Pursuant to W. Va. Code §38-10C-2, the clerk or clerks of the county commission or commissions shall, upon the filing of the notice, index the notice in the judgment or tax lien docket of his or her office against the employer or lienee in favor of the state of West Virginia and the Commissioner. Upon the satisfaction of such lien, a properly acknowledged release thereof for recordation shall be delivered or mailed to the employer or lienee by the Commissioner or shall be delivered or mailed to the clerk of the county commission in the county in which the lien was filed. Such notice or notices of the lien shall be supplemented by additional notices from time to time whenever any additional liability is incurred by the employer or is determined by audit or other proceeding.

7.4. Until the lien is docketed as provided for in subsection 7.3 of this section, the lien is unenforceable against purchasers (including a lien creditor) of real estate or personal property for a valuable consideration except for such purchasers with actual notice of the Commissioner’s lien. However, if a purchaser (including a lien creditor) of real estate or personal property for a valuable consideration has actual knowledge of the lien, then that lien shall be enforceable against such a purchaser even before the lien is docketed as provided for in subsection 7.3 of this section. Following the docketing pursuant to subsection 7.3 of this section, the lien is enforceable against any purchaser (including a lien creditor) with or without actual notice of the lien.

7.5. Once all amounts due from the employer are collected by the Commissioner, the Commissioner shall release the lien or liens as provided by law.

W. Va. Code R. § 85-11-8 Civil Actions

8.1. The Commissioner in the name of the State may commence a civil action against a default employer to recover any payment and interest thereon due and unpaid under chapter twenty-three of the West Virginia Code and the rules promulgated thereunder, including, but not limited to, money owed to the Old Fund, money owed to the Uninsured Employers’ Fund and money owed pursuant to liabilities accrued by the employer while the employer was self-insured.

8.2. Pursuant to W. Va. Code §23-2-5a, if the judgment entered in a civil action as described in this section is against the defendant employer, the defendant shall pay the costs of the action. In addition, a civil action as described in this section shall be given preference on the calendar of the court over all other civil actions.

8.3. Consistent with the provisions of W. Va. Code §33-2-22(e), the Commissioner may compromise and settle amounts due to the Old Fund or Uninsured Employer Fund if it is found to be in the best interests of the State. Any such compromise or settlement is public information.

W. Va. Code R. § 85-11-9 Injunctions From Carrying On Business

9.1. Pursuant to the provisions of W. Va. Code §33-2-22(b), the Commissioner may bring an action against a default employer in the Circuit Court of Kanawha County to enjoin such default employer from continuing to carry on business.

9.2. Pursuant to the provisions of W. Va. Code §33-2-22(c), the Circuit Court of Kanawha County shall issue an injunction prohibiting the default employer from operating its business if the Commissioner proves by a preponderance of the evidence that the employer is in default status.

9.3. The Commissioner may, in the Commissioner’s sole discretion, as an alternative to pursuing such an injunction as described in this section, require a default employer to file a bond in the form prescribed by the Commissioner with satisfactory surety in an amount not less than fifty percent more than the payments and interest due. The bond must be issued by a corporate surety satisfactory to the Commissioner.

W. Va. Code R. § 85-11-10 Receivership and Insolvency Proceedings; Bankruptcy

10.1. In the event that a default employer owing payment and interest due thereon under Chapter twenty-three of the West Virginia Code or the rules promulgated thereunder, including, but not limited to, money owed to the Old Fund, money owed to the Uninsured Employers’ Fund and money owed pursuant to liabilities accrued by the employer while the employer was self-insured, shall be operated in connection with a receivership or insolvency proceeding in any state court in this state, the court under whose direction such business is operated shall, by the entry of a proper order or decree in the cause, make provisions, so far as the assets in administration will permit, for the regular payment of such payments as the same become due.

10.2. In any such case as is described in subsection 10.1 of this section, the Commissioner may file such pleadings, motions, and other documents and take any other legal action necessary to protect the interests of West Virginia’s workers’ compensation market during the pendency and resolution of such case.

10.3. In the event that a default employer owing payment and interest under the provisions of chapter twenty-three of the West Virginia Code and the rules promulgated thereunder, including, but not limited to, money owed to the Old Fund, money owed to the Uninsured Employers’ Fund and money owed pursuant to liabilities accrued by the employer while the employer was self-insured, files for or is placed in a bankruptcy proceeding under the laws of the United States, the Commissioner may become a party to such proceedings and take any and all actions needed to protect the interests of West Virginia’s workers’ compensation market during the pendency and resolution of the proceeding. The Commissioner may institute an involuntary proceeding against an employer in a bankruptcy court of the United States in any proper instance. All former premium tax assessments owed to the Old Fund and all surcharges and assessments owed by employers pursuant to chapter twenty-three of the West Virginia Code or the rules promulgated thereunder, including, but not limited to, the regulatory and Debt Reduction Fund surcharges and assessments pursuant to W. Va. Code §23-2C-3(f), assessments and liabilities owed to the Uninsured Employers’ Fund pursuant to W. Va. Code §23-2C-8 and assessments for the Self-Insured Guaranty and Security Risk Pools as established in W. Va. Code §23-2C-1, et seq. and 85CSR19 §1, et seq., are special revenue taxes under and according to the provisions of state workers’ compensation laws and are deemed to be tax claims, as priority claims or administrative expense claims according to those provisions of law provided in the United States bankruptcy code.

W. Va. Code R. § 85-11-11 Payment Agreements

11.1. Any default employer may, at the discretion of the Commissioner, make application, on a form provided by the Commissioner, to enter into a payment agreement with the Commissioner which provides for payment of the debt owed to the Commissioner in installments.

11.2. As a prerequisite to entering into a payment agreement, a default employer as described in subsection 11.1 of this section may be required to make a good faith payment of ten percent (10%) of the total current outstanding liability owed or in such other amount as the Commissioner determines will ensure that the employer maintains West Virginia workers’ compensation coverage and pay off its outstanding debt under the agreement.

11.3. A default employer as described in subsection 11.1 of this section who enters into a payment agreement and also provides the Commissioner with a current certificate of workers’ compensation insurance shall be removed from the Default List.

11.4. The Commissioner may then delay or continue further pursuit of that remedial action if, in the Commissioner’s sole discretion, delaying or continuing such action will lead to the employer maintaining West Virginia workers’ compensation coverage and paying off its debt owed under the agreement.

11.5. Permitting an employer to enter into a payment agreement is discretionary with the Commissioner. Such discretion shall be exercised with regard to the best interests of the Old Fund, Uninsured Employers’ Fund and/or the self-insured community, as applicable.

11.6. The Commissioner may permit the payment of all amounts due to the Old Fund, Uninsured Employers’ Fund, or owed pursuant to liabilities accrued by the employer while the employer was self-insured, or any combination thereof, upon the terms stated in a payment agreement. The Commissioner shall additionally have sole discretion in prescribing the terms and length of an agreement under this section, taking into consideration the best interests of the Old Fund, Uninsured Employers’ Fund and/or the self-insured community, as applicable.

11.7. Pursuant to W. Va. Code §33-2-22(e), the Commissioner shall have authority to waive or reduce any amount owed to the Old Fund and/or Uninsured Employers’ Fund. In all cases when the Commissioner agrees to waive or reduce amounts owed to the Old Fund and/or Uninsured Employers’ Fund as described in this subsection, such decision shall be made consistent with the best interests of the Old Fund and/or Uninsured Employers’ Fund, as applicable. Any amount waived or reduced under this section shall be noted in any payment agreement entered into pursuant to this section.

11.8. Any employer that misses a payment will be provided notice by the Commissioner of a right to cure the missed payment within twenty (20) days of the employer’s receipt of such notice. If after the expiration of the right to cure period no payment is received, the payment agreement becomes null and void and the employer shall be placed on the Default List and be deemed to owe the original amount, minus any credits for amounts actually paid under the agreement prior to default on the agreement. If it is found to be consistent with the best interests of the Old Fund, Uninsured Employers’ Fund and/or the self-insured community, as applicable, the Commissioner may, within his or her sole discretion, provide the employer more than twenty (20) days to cure the missed payment. Such additional notice may be provided either in the original notice of a right to cure or by way of an informal verbal agreement, to permit the employer some additional time to cure the missed payment.

11.9. The interest rate agreed to in a payment agreement shall not change over the term of the agreement.

11.10. Except as expressly provided in this section, nothing in this section shall limit the Commissioner from pursuing any other type of collection or enforcement method under chapter twenty-three of the West Virginia Code or the rules promulgated thereunder.

W. Va. Code R. § 85-11-12 Administrative Hearings

All administrative hearings conducted pursuant to this rule will be held in accordance with the provisions of W. Va. Code §29A-5-1, et seq., and with the provisions of Sections 4 through 10 of 85CSR7, “Rules for Selected Hearings.”

W. Va. Code R. § 85-11-13 Interest

13.1. Pursuant to W. Va. Code §23-2-13, all payments unpaid on the date on which due and payable, as prescribed by the Commissioner, shall immediately begin bearing interest. Interest shall be compounded quarterly until payment plus accrued interest is received by the Commissioner; except that future interest for payment agreements shall be calculated and provided at a simple rate of interest. Interest collected pursuant to this subsection shall be paid into the Old Fund, Uninsured Employers’ Fund or Self-Insured Guaranty Risk Pool or Security Risk Pool (as established in 85CSR19 §1, et seq.), whichever is applicable.

13.2. Notwithstanding the provisions of subsection 13.1 of this section, in no event shall the rate of interest charged a political subdivision of the State or a volunteer fire department exceed ten percent per annum.

W. Va. Code R. § 85-11-14 Reserved

W. Va. Code R. § 85-11-15 Criminal Penalties

In addition to all other remedies available to the Commissioner, in accordance with W. Va. Code §61-3-24e, the Commissioner may elect to request prosecution of any person, firm, partnership, association, corporation or other entity who violates certain provisions of Chapter twenty-three of the West Virginia Code or the rules promulgated thereunder.

W. Va. Code R. § 85-11-16 Freedom of Information Act

Pursuant to the Freedom of Information Act, W. Va. Code §29B-1-1, et seq. and W. Va. Code §23-1-4(b), all of the evidence and records submitted during a hearing or proceeding under this rule, or as part of a stipulation, except insofar as those records contain confidential medical information or other information confidential to a workers’ compensation claimant, employer, or other person or entity shall be subject to public inspection and copying; except that, if under the rules of evidence certain testimony or documentary evidence may be deemed privileged or confidential and placed under seal, then upon such a ruling by the hearing officer, such testimony or documentary evidence shall not be disclosed. If the privileged or confidential information cannot be excised from a record, then the record as a whole will be deemed confidential and sealed; however, the Commissioner shall release in its place a statement explaining in detail the basis for the withholding of the record.

W. Va. Code R. § 85-11-17 Placement on Workers’ Compensation Default List; Due Process and Hearing

17.1. When the Commissioner is made aware that an employer is in default, the Commissioner shall send the alleged default employer a notice informing the employer of the circumstances causing the employer to be in default and that the employer will be placed on the Default List within fifteen (15) days of the date on the letter. The notice shall also inform the employer that the employer may request an expedited administrative hearing before the Commissioner if the employer believes that the impending action by the Commissioner is factually or legally erroneous.

17.2. A request for an expedited administrative hearing, as described in subsection 17.1 of this section, shall clearly identify why the employer believes the Commissioner’s impending action of placing it on the Default List is legally or factually erroneous. Upon receiving the request, the Commissioner shall, within ten (10) business days, hold a hearing which shall be conducted in accordance with the provisions of W. Va. Code §29A-5-1, et seq., and 85CSR7 §§4 through 10. A continuance shall only be granted upon the showing of good cause. An appeal from a final decision of the Commissioner shall be taken in accordance with the provisions of articles five and six [§29A-6-1, et seq.] of said chapter: Provided, That all appeals shall be taken to the Circuit Court of Kanawha County.

17.3. If an employer files a request for an expedited hearing pursuant to subsections 17.1 and 17.2 of this section, the fifteen (15) day time frame for placing the employer on the Default List shall be stayed until the Commissioner’s final order upon the expedited hearing is issued, the request is withdrawn or the matter is otherwise resolved.

17.4. If the final decision of the Commissioner following the hearing upholds the original decision to place the employer on the Default List, the employer shall immediately be placed on the Default List.

17.5. The administrative appeal process described in this section does not interfere with or toll a workers’ compensation carrier’s right to terminate the employer’s West Virginia workers’ compensation coverage. The workers’ compensation carrier’s right to terminate an employer’s West Virginia workers’ compensation coverage is based upon the provisions of the insurance policy and the applicable law in chapters twenty-three and thirty-three of the West Virginia Code and the rules promulgated thereunder.

W. Va. Code R. § 85-11-18 Removal From the Default List

18.1. The Commissioner shall remove the employer from the Default List if an employer has met all of its legal, fiscal or other obligations pursuant to chapter twenty-three of the West Virginia Code and the rules promulgated thereunder, including, but not limited to, providing proof of current West Virginia workers’ compensation coverage and paying all amounts owed under c hapter twenty-three of the West Virginia Code.

18.2. An employer on the Default List shall be permitted at any time to make a written request to the Commissioner for removal from the Default List: Provided, That such request is accompanied by evidence not previously submitted to the Commissioner which indicates that the employer making the request has met its obligations described in subsection 18.1 of this section and therefore is entitled to be removed from the Default List.

18.3. Employers may file a petition with the Commissioner requesting an administrative hearing before the Commissioner if they believe they should be removed from the Default List: Provided, That the Commissioner reserves the right to summarily deny an employer’s petition for a hearing if the Commissioner determines that the employer presented no new evidence to the Commissioner in support of its written request for removal, is presenting evidence of no probative value or is otherwise making a frivolous request.

W. Va. Code R. § 85-11-19 Uninsured Fines

19.1. Any employer that fails to maintain West Virginia workers’ compensation coverage for any period, regardless of whether the employer has such coverage at the time the uninsured period is discovered, shall, subject to the limitations of subsection 19.2 of this section, be fined by the Commissioner an amount equal to twice the amount of monthly base premium as calculated at the beginning of the uninsured period for each month, or portion of each month, the employer is or was without West Virginia workers’ compensation coverage.

19.2. Pursuant to W. Va. Code §23-2C-8(d)(3), no fine imposed in this section for a single continuous period of failing to maintain West Virginia workers’ compensation coverage shall exceed ten thousand dollars ($10,000). However, if an employer procures West Virginia workers’ compensation coverage following a period of failing to maintain such coverage and then thereafter again fails to maintain such coverage, they will again be subject to a fine pursuant to subsection 19.1 of this section of up to ten thousand dollars ($10,000).

W. Va. Code R. § 85-11-20 Employer Violator System

20.1. Every employer subject to placement on the Default List shall also be placed in the Employer Violator System {W. Va. Code §23-1-1b(g)(25)}, and shall remain in the Employer Violator System until such time as the employer is removed from the Default List.

20.2. All individuals who own, are officers, members or partners of, control, have a 10% ownership interest in, or are otherwise deemed to have a substantive or active ownership interest in an employer company which is on the Default List shall be placed in the Employer Violator System, and shall remain in the Employer Violator System until such time as the employer is removed from the Default List.

85CSR11

85CSR11

Series 12 Compromise and Settlement of Workers' Compensation Issues

W. Va. Code R. § 85-12-1 General

1.1. Scope. -- These rules shall govern the compromise and settlement of workers’ compensation issues pursuant to W. Va. Code §23-5-7.

1.2. Authority. -- W. Va. Code §§23-2C-5(c)(2); 23-2C-22; 33-2-10(b); 33-2-20(a); 23-4-1 et seq.; 23-5-1; 23-5-7. Pursuant to W. Va. Code §§23-2C-5(c)(2) and 33-2-10(b), rules adopted by the industrial council and the Insurance Commissioner are not subject to legislative approval as would otherwise be required under W. Va. Code, §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- October 16, 2019.

1.4. Effective Date. -- November 15, 2019.

W. Va. Code R. § 85-12-2 Purpose

The purpose of this rule is to establish a consistent process to govern the settlement of workers’ compensation issues.

W. Va. Code R. § 85-12-3 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. “Insurance Commissioner” means the Insurance Commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code, or any designated third-party administrator of the Insurance Commissioner.

3.2. “Industrial Council” means the industrial council created pursuant to the provisions of W. Va. Code §23-2C-5.

3.3. “Orthopedic occupational disease” means an occupational disease that involves the musculoskeletal system as it functions for the purpose of mobility. The musculoskeletal system includes the following component parts: (1) bone(s); (2) muscle(s); (3) tendon(s); (4) ligament(s); and (5) nerve(s). An orthopedic occupational disease may affect one or more component parts of the musculoskeletal system.

3.4. “Nonorthopedic occupational disease” is an occupational disease that is not an orthopedic occupational disease. For the purposes of this rule, the term “nonorthopedic occupational disease claim” does not include an occupational hearing loss or hearing impairment claim.

3.5. “Occupational exposure injury” means a one-time, limited-duration hazardous exposure that creates an immediate acute pathophysiologic change.

3.6. “Occupational disease,” as further defined in W. Va. Code §23-4-1(f), is related to prolonged hazardous exposure and creates chronic pathophysiologic changes that develop over time and that are more likely to result in prolonged sequelae and/or permanent physical impairment.

3.7. “Private carrier” means any insurer authorized by the insurance commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code.

3.8. “Self-insurer” or “self-insured employer” mean an employer who is eligible and has been granted self-insured status under the provisions of W. Va. Code §23-2-9.

3.9. “Review process” refers to the period between the identification of a potential claim and the final closure of the claim pursuant to the statute.

3.10. “An employer that ‘is not active in the claim’”, as described in W. Va. Code §23-5-7, means all employers other than those employers that have been granted self-insured status pursuant to W. Va. Code §23-2-9: Provided, That the role of an insured employer to participate in the settlement of a workers’ compensation claim shall be controlled by the terms of the workers’ compensation insurance policy.

W. Va. Code R. § 85-12-4 Parties

Pursuant to the requirements of W. Va. Code §23-5-7 and the regulations herein set forth, the claimant and the Insurance Commissioner, other private insurance carriers, or self-insured employer, whichever is applicable, may negotiate a settlement of any and all issues in a claim or claims, provided that in the settlement of medical benefits for nonorthopedic occupational disease claims, the claimant shall be represented by legal counsel. An insured employer is permitted to participate in the settlement of a claim only to the extent that the employer is permitted to do so under the terms of the applicable workers’ compensation insurance policy.

W. Va. Code R. § 85-12-5 Issues Subject to Settlement

If the claim is in the review or appellate process, all claim issues may be settled, even though the issues may not be currently contested. These issues include, but are not limited to, medical benefits, temporary total disability, temporary partial disability, permanent partial disability, permanent total disability, vocational rehabilitation and any other issues within the settlement provisions of W. Va. Code §23-5-7.

W. Va. Code R. § 85-12-6 Manner of Payment

The parties to any settlement may arrange for any amount to be paid to the claimant or for the benefit of the claimant in a lump sum or in incremental payments or in any manner as agreed upon by the parties. If no mention is made in the settlement agreement regarding a permanent disability percentage, the claim record will not reflect a percentage for the settlement award.

W. Va. Code R. § 85-12-7 Dependent’s Benefits

Except in cases where the claimant has previously been granted a permanent total disability award, dependents are not entitled to one hundred four (104) weeks of benefits as set forth in W. Va. Code §23-4-10 if the agreement is silent as to the claimant’s entitlement to a permanent total disability award.

W. Va. Code R. § 85-12-8 Settlement Not to be Considered an Admission Against Interest

The terms of a settlement agreement shall not constitute an admission against interest by any party. All communications and correspondence between the parties during settlement negotiations are confidential and may not be used against a party if a settlement is not reached.

W. Va. Code R. § 85-12-9 Effective Date of Settlement

Unless otherwise agreed upon by the parties, the effective date of a settlement shall be the date the agreement is executed by the claimant and the Insurance Commissioner, private insurance carrier, or self-insured employer, whichever is applicable.

W. Va. Code R. § 85-12-10 Minor Dependents and Claimants

In any case in which a surviving dependent infant may be entitled to receive the balance of a permanent partial disability award due to the death of a claimant before such award was paid in full or in any case in which the claimant is an infant, the legal guardian of such infant may negotiate a settlement of such claim with the Insurance Commissioner, private insurance carriers, and self-insured employers, whichever is applicable. The legal guardian shall proceed as set forth in W. Va. Code §44-10-14. The appointment of said guardian shall be done as set forth in W. Va. Code §44-10-1 et seq. No bond shall be required of said guardian by the Insurance Commissioner in addition to that required by the appointment of said guardian or approval by the circuit court of any settlement pursuant to the provisions of W. Va. Code §44-10-1 et seq.

W. Va. Code R. § 85-12-11 Death of Claimant

Unless otherwise agreed upon by the parties, should a claimant to whom an award has been made pursuant to a settlement die, the unpaid balance of the award shall be paid to the claimant's dependents as defined in W. Va. Code §23-4-10, if any. The payment shall be made in the same installments which would have been made to the claimant if living, but, unless otherwise specified in the settlement agreement, no payment shall be made to a surviving spouse of the claimant after his or her remarriage and such liability shall not accrue to the estate of such claimant and shall not be subject to any debts or charges against the estate.

If the claimant dies while the settlement is pending and the claimant is survived by dependents, the settlement may continue as if the death had not occurred. The payment shall be made to the dependents.

W. Va. Code R. § 85-12-12 Deductions From Settlement Awards

12.1. Pursuant to W. Va. Code §23-4-18, any amounts owed for child or spousal support will be withheld from settlement payments.

12.2. Overpayments will be deducted pursuant to W. Va. Code §§23-4-1c and 23-4-1d, unless otherwise agreed upon by the parties in the agreement.

12.3. Any award of monetary benefits entered by the office of judges, the Appeal Board or the Supreme Court of Appeals of West Virginia after the date the settlement agreement was signed by the necessary parties shall be deducted from the agreed upon settlement amount: Provided, That the deduction in this subsection can only be applied for amounts of award(s) of monetary benefits which involve the same issue(s) that the settlement involved, or if the settlement was a full and final settlement of all issues involved in the claim. If the amount of any such award is greater than the agreed upon settlement amount, the claimant’s recovery shall be limited to the amount specified in the settlement agreement.

W. Va. Code R. § 85-12-13 Settlement Terms

Under the terms of the agreement, the claimant shall be provided five (5) business days to revoke the executed settlement agreement. In addition and in accordance with the provisions of W. Va. Code §23-5-7, each settlement agreement shall provide the toll free number of the West Virginia State Bar.

W. Va. Code R. § 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. § 85-12-15 Severability

If any provision of these rules or the application thereof to any person, party, or circumstances is held unconstitutional or invalid, such unconstitutionality or invalidity shall not affect the other provisions or application of these rules, and to this end the provisions of these rules are declared to be severable.

Series 13 Procedural Rules for the Industrial Council

W. Va. Code R. § 85-13-1 General

1.1. Scope. -- The West Virginia Open Governmental Proceedings Law, notably at W. Va. Code §6-9A-3, requires that governing bodies of state public bodies shall promulgate rules by which the time, the place, and the purpose of all regularly scheduled meetings and the time, place, and purpose of all emergency meetings are made available, in advance, to the public and the news media to the extent possible. Similarly, W. Va. Code §29A-3-3 requires that agencies adopt procedural rules. The purpose of this rule is to comply with these requirements.

1.2. Authority. -- W. Va. Code §§6-9A-3, 23-2C-5 and 29A-3-3.

1.3. Filing Date. -- March 10, 2022.

1.4. Effective Date. -- March 10, 2022.

W. Va. Code R. § 85-13-2 Application and Enforcement

2.1. Application. This procedural rule applies to the Workers’ Compensation Industrial Council created pursuant to W. Va. Code §23-2C-5. The enforcement of this rule is vested with the Chairperson of the Council.

2.2. Except as specifically required by this rule, the Council shall not use any formal points of parliamentary order, personal privilege, parliamentary inquiry or other technical forms.

2.3. Any matter, procedure or order not covered by these rules shall be referred to the presiding officer who shall decide the matter in conformity with the purpose of these rules in a fair and expeditious manner. The decision of the presiding officer may be reversed by an affirmative vote of three (3) Members of the Council.

W. Va. Code R. § 85-13-3 Definitions

3.1. “Advisory Member” means a non-voting member as more fully set forth in W. Va. Code §23-2C-5(b).

3.2. “Chairperson” means the member elected as provided for by W. Va. Code §23-2C-5(b)(2)(D).

3.3. “Commissioner” means the West Virginia Insurance Commissioner.

3.4. “The Council” means the Workers’ Compensation Industrial Council created under W. Va. Code §23-2C-5.

3.5. “Decision” means any determination, action, vote or final disposition of a motion, proposal, resolution, order or measure on which a vote of the Council is required at any meeting at which a quorum is present.

3.6. “Meeting” means the convening of the Council for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter. For the purposes of W. Va. Code §23-2C-5(b)(3)(A), subcommittee meetings shall meet the definition of “Meeting” for those Members required to attend the subcommittee meeting: Provided, That when subcommittee meetings are held on the same day as a full Council meeting, Members may only receive compensation for the attendance of one meeting.

3.7. “Member” means a voting member of the Council as more fully set forth in W. Va. Code §23-2C-5(b).

3.8. “Presiding Officer” means the Chairperson or, in the absence of the Chairperson, the Vice-Chairperson. If both the Chairperson and Vice-Chairperson are absent, the presiding officer is the person elected pursuant to sections 6.1 and 6.2 of this rule.

3.9. “Quorum” means the presence of three (3) Members of the Council as provided for in W. Va. Code §23-2C-5(b)(2)(D).

W. Va. Code R. § 85-13-4 Meetings; Rules of Order; Selection of Vice-Chairperson

4.1. Meetings of the Council may be called by the Chairperson, and the Chairperson shall call a meeting upon the request of at least three (3) Members: Provided, That the Council must meet no less frequently than once every three (3) months. All meetings shall be held at locations and in facilities large enough to comfortably accommodate Members, Advisory Members and a reasonable number of public observers and participants. The Chairperson may elect to hold meetings in-person or virtually via videoconferencing or teleconferencing, or by a combination thereof, but is not required to permit virtual attendance options. The Chairperson may allow virtual public participation at his or her discretion.

4.2. The Chairperson, or his or her designee, shall notify Members and Advisory Members in writing at least seven (7) days in advance of a meeting. The notice shall set forth the time and place of such meeting and the matters to be considered, except that such notice is not required if the time, the place, and the matters for consideration have been fixed in a meeting where all the Members and Advisory Members are present.

4.3. The Chairperson, or his or her designee, shall notify the public and the news media by filing with the office of the Secretary of State an electronic public notice of the meeting. The notice shall be filed in a manner so as to allow each notice to appear on the Secretary of State’s website at least five (5) business days prior to the date of the meeting. The public notice shall contain the time, the place, and purpose of the meeting. The Commissioner shall also post public notice of the meeting in an easily identifiable place on his or her public website.

4.4. The provisions of sections 4.1, 4.2 and 4.3 of this rule shall not apply in the event of an emergency requiring immediate official action by the Council. In the event of an emergency requiring immediate official action, the Council may file an emergency meeting notice at any time prior to the meeting. The emergency meeting notice shall state the time, place, and purpose of the meeting and the facts and circumstances of the emergency. The Commissioner shall also post public notice of an emergency meeting in an easily identifiable place on his or her public website as soon as reasonably practical prior to the meeting.

4.5. Meetings may be continued to a set time and place by an affirmative vote of three (3) Members without further notice to the Members and Advisory Members and without further publication unless such continued meeting is scheduled for more than fourteen (14) days from the date of the voting.

4.6. All Members and Advisory Members present at a meeting shall have the same right to participate in discussion of matters before the Council.

4.7. The Council shall consider any matter brought before it by the Chairperson or any Member or Advisory Member and may consider, at its discretion, any matter referred to it by a person not a Member or Advisory Member.

4.8. Meetings of the Council shall be conducted in accordance with the most recent edition of Robert’s Rules of Order.

4.9. Members shall select a Member to serve as Chairperson and another Member to serve as Vice-Chairperson. The Vice-Chairperson shall preside in the absence of the Chairperson. The terms of the Chairperson and Vice-Chairperson shall be for one (1) year, from July 1 to June 30, but the incumbent shall continue to serve until replaced. A vacancy may be filled by electing a new Chairperson or Vice-Chairperson for the remainder of a term. A Member may be reelected as Chairperson or Vice-Chairperson. The Commissioner, or his or her designee, shall serve as secretary of the Council.

4.10. A Member participating virtually in a meeting, whether through teleconferencing or videoconferencing, may vote for or against any motion offered by a Member that is seconded by another Member.

4.11. In an effort to achieve desired efficiencies, the Chairperson will endeavor to set the meetings of the full Council on the same day with any necessary subcommittee meetings.

W. Va. Code R. § 85-13-5 Agenda

5.1. Prior to each regular meeting, the Commissioner, or his or her designee, shall publish an agenda that contains all items the Council anticipates acting upon at the meeting. The Council may adopt the agenda as presented or may amend the agenda.

5.2. The Commissioner may utilize, for purposes of accomplishing his or her secretarial duties under this rule, clerical staff designated by the Offices of the Insurance Commissioner. This utilization may include, but is not limited to, the designation of staff to receive proposed agenda items, preparation of the agenda, recording and preparation of minutes, and all necessary public filing duties.

5.3. Agenda deadline. Any Member or Advisory Member may have an item included on the agenda by requesting the Commissioner, or his or her designee, to include the item by 5:00 p.m. on the Tuesday preceding the Wednesday by which the agenda must be filed with the Secretary of State’s Office for publication on the Secretary of State’s website in order to comply with the open meetings laws of this State.

5.4. Notice of Meeting. The Commissioner, or his or her designee, shall electronically file a notice of each Council meeting with the Secretary of State for publication on the Secretary of State’s website. Each notice shall be filed in a manner to allow it to appear on the Secretary of State’s website at least five (5) business days prior to the date of the meeting. When calculating the days, the day of the meeting is not to be counted. If a meeting notice is filed anytime other than during the Secretary of State’s regular business hours, the date of filing will be considered the next business day.

5.5. Items requested or filed after the deadline for electronically filing the agenda with the Secretary of State’s Office shall not be included on the agenda unless a Member or Advisory Member deems the item of sufficient urgency to warrant immediate Council action. These items shall be designated as “Extra” items and will be considered at the end of the regular agenda. The Commissioner, or his or her designee, shall record on the Extra item the name of the sponsoring Member or Advisory Member.

5.6. Withdrawal of items. Only the Member or Advisory Member requesting the placement of an item on the Agenda may withdraw the item prior to the electronic filing of the agenda with the Secretary of State’s Office.

5.7. A Member or Advisory Member wishing the Council to continue, defer, or not act on an agenda item has a right to make and have his or her motion to continue, defer, or not act on any agenda item considered before any other act that the Council may consider on the agenda item.

W. Va. Code R. § 85-13-6 Opening the Meeting

6.1. Call to order. The Chairperson or Vice-Chairperson of the Council shall call the meeting to order at the appointed hour. In the absence of the Chairperson or Vice-Chairperson, the Commissioner shall call the meeting to order and a temporary presiding officer shall then be selected as set forth under section 6.2 of this rule.

6.2. Presiding officer. The Chairperson, or in the Chairperson’s absence or incapacity, the Vice-Chairperson, shall be the presiding officer at the meeting of the Council. If both the Chairperson and the Vice-Chairperson are absent, the Commissioner, or his or her designee, shall call the meeting to order and the Members present shall select a presiding officer by a majority vote of present Members. In the absence of such vote, the Commissioner, or his or her designee, shall remain and continue to be the presiding officer of the meeting.

6.3. Roll call. Before proceeding with the business of the Council, the Chairperson shall call the roll of Members and Advisory Members present, and ensure that the names are recorded in the minutes of the meeting. The Chairperson or presiding officer shall determine the presence of a quorum as required by these rules.

6.4. Order of consideration of agenda items. Except as otherwise provided in these rules, each agenda item shall be considered in numerical order. Each agenda item shall be separately announced for purposes of discussion and consideration.

W. Va. Code R. § 85-13-7 Discussion

7.1. The presiding officer shall control the discussion of the Council on each agenda item to assure full participation in accordance with these rules.

7.1.1. A Member or Advisory Member shall speak only after being recognized by the presiding officer. A Member or Advisory Member recognized for a specific purpose shall limit his or her remarks to that purpose. A Member or Advisory Member, after being recognized, shall not be interrupted except by the presiding officer to enforce these rules.

7.1.2. Each Member and Advisory Member shall limit his or her remarks to a reasonable length.

7.1.3. The presiding officer may enter into any discussion. The presiding officer has the right to close debate and speak last on any item.

7.2. Closing debate. Discussion may be closed on any item by the presiding officer. Such closure may be reversed by a vote of three (3) Members.

W. Va. Code R. § 85-13-8 Motions; Voting

8.1. Motion to act on matters. At any appropriate place on the agenda, any Member may make a motion for the Council to act upon any matter if the motion is germane to the matter then under consideration.

8.2. Motion required. All action requiring a vote shall be moved by a Member and seconded by a different Member of the Council.

8.3. Recording names of moving Members. The Commissioner, or his or her designee, shall record for the official minutes the name of the Council Member moving and seconding each motion.

8.4. Call for vote. At the conclusion of debate, the presiding officer shall call for a vote: Provided, That an affirmative vote of three (3) Members may require a vote at any time.

8.5. Prevailing vote required; Vote by Proxy Prohibited. The vote of three (3) Members shall be necessary to take any action.

8.6. Motion to reconsider. A motion to reconsider must be made by a Member who was on the prevailing side in the original action.

W. Va. Code R. § 85-13-9 Proceeding to be Open; Exceptions; Executive Session Permitted

9.1. All meetings of the Council shall be open to the public; Except that, an executive session closed to the public may be held during a regular or emergency meeting, after the presiding officer has identified the authorization under W. Va. Code §6-9A-4 for the holding of such executive session and has presented it to the Council and to the general public. No decision by the Council may be made in the executive session.

9.2. An executive session may be held only upon an affirmative vote of three (3) Members for the following reasons (as set forth in W. Va. Code §6-9A-4):

9.2.1. To consider matters of war, threatened attack from a foreign power, civil insurrection or riot;

9.2.2. To consider:

9.2.2.a. Matters arising from the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of a public officer or employee, or prospective public officer or employee unless the public officer or employee or prospective public officer or employee requests an open meeting;

9.2.2.b. For the purpose of conducting a hearing on a complaint, charge or grievance against a public officer or employee, unless the public officer or employee requests an open meeting. General personnel policy issues may not be discussed or considered in a closed meeting. Final action by a public agency having authority for the appointment, employment, retirement, promotion, transfer, demotion, disciplining, resignation, discharge, dismissal or compensation of an individual shall be taken in an open meeting;

9.2.3. To issue, effect, deny, suspend or revoke a license, certificate or resignation under the laws of this State or any political subdivision, unless the person seeking such license, certificate or registration or whose license, certificate or registration was denied, suspended or revoked requests an open meeting;

9.2.4. To consider the physical or mental health of any person, unless such person requests an open meeting;

9.2.5. To discuss any material the disclosure of which would constitute an unwarranted invasion of an individual’s privacy such as any records, data, reports, recommendations or other personal material of any educational, training, social service, rehabilitation, welfare, housing, relocation, insurance and similar program or institution operated by a public agency pertaining to any specific individual admitted to or served by the institution or program, the individual’s personal and family circumstances;

9.2.6. To plan or consider an official investigation or matter relating to crime prevention or law enforcement;

9.2.7. To develop security personnel or devices;

9.2.8. To consider matters involving or affecting the purchase, sale or lease of property, advance construction planning, the investment of public funds or other matters involving commercial competition, which if made public, might adversely affect the financial or other interest of the state or any political subdivision. Information relied on during deliberations on matters involving commercial competition are exempt from disclosure under the open meetings requirements of this article only until the commercial competition has been finalized and completed. However, information that is not subject to release pursuant to the West Virginia Freedom of Information Act does not become subject to disclosure as a result of executive session; or

9.2.9. To discuss any matter which, by express provision of federal law or state statute or rule of court is rendered confidential, or which is not considered a public record within the meaning of the Freedom of Information Act as set forth in W.Va. Code §29B-1-1 et seq.

9.3. The Council may limit the number of members of the public present for a meeting if there is not room enough for all members of the public who wish to attend. This limitation may take the form of a limit on the number of members of the public present or the amount of time individual members of the public may remain, or both.

9.4. The presiding officer is authorized to order the removal from a meeting of any member of the public who is disrupting the meeting to the extent that orderly conduct of the meeting is compromised.

9.5. Upon an affirmative vote of three (3) Members, members of the public may be permitted to address the Council for a reasonable length of time or for such time as is fixed by the Council. Members of the public desiring to address the Council shall indicate their desire to do so by marking the register of attendance accordingly: Provided, That such person shall not be required to register to address the Council more than fifteen (15) minutes prior to the time the scheduled meeting is to commence.

9.6. All members of the public present for a meeting of the Council shall indicate their presence by signing their name to a register of attendance which may also require the giving of each such person’s address and who such person is representing. If a member of the public is attending a meeting virtually, the person should indicate his or her presence verbally or through a chat or message function if participating through videoconferencing. Persons desiring to address the Council will also be required to provide the information set forth in section 10.2 of this rule.

W. Va. Code R. § 85-13-10 Citizen’s Right to Address Council

10.1. Persons other than Members and Advisory Members shall be permitted to address the Council only upon specific agenda items, which may include an agenda item called “General Public Comment Period.”

10.2. Persons desiring to address the Council shall register to speak prior to the start of the Council meeting. The form for registration shall require the following information: (1) name of the person, (2) mailing address, (3) telephone number where the person may be reached during the day, (4) the person’s group affiliation, if any, and (5) the agenda item to which the person desires to speak. If the person does not desire to speak to a particular agenda item, the person shall identify the subject matter about which he or she wishes to speak. If a member of the public is attending a meeting virtually, the person should register by providing the information required herein through electronic mail, fax, through a chat or message function if participating through videoconferencing, or by any other means acceptable to the Council.

10.3. A person desiring to address the Council shall, after being recognized, state his or her name, address, and group affiliation (if any), and speak clearly into the microphone.

10.4. Time limits. Citizens shall be limited to five (5) minutes speaking time per item, unless additional time is granted by the presiding officer. Total citizen input on any subject under Council consideration can be limited to a fixed period by the presiding officer. An affirmative vote of three (3) Members may extend the time limitations of this rule.

10.5. The time limits set forth in section 10.4 of this rule do not apply to persons whom the Council has asked to come and address the Council. Such persons shall have as much time as the presiding officer or the Council allows for the presentation, including any question-and-answer period.

10.6. Remarks of citizens to be germane.

10.6.1. Citizen comments must be directed to a specific item on the agenda, unless the comments are offered during a general public comment period when the public may comment on any aspect of the work of the Council.

10.6.2. The presiding officer shall rule on the germaneness of citizen remarks. The ruling may be initiated by the presiding officer or pursuant to a point of order raised by a Member or Advisory Member.

10.6.3. Citizens making personal, impertinent, or slanderous remarks shall be barred by the presiding officer from further comment before the Council during that meeting.

10.7. Matters not on agenda. An affirmative vote of three (3) Members may allow citizens who wish to raise a matter not on the agenda to speak.

10.8. With regard to exempt legislative rules, a member of the public may request the Council hold a public hearing on the rule no later than fifteen (15) days from the date the rule is filed for public comment with the Secretary of State’s office. Requests may be submitted to the Council or the Commissioner’s contact person identified on the “Notice of a Comment Period on a Proposed Rule.” Whether a public hearing is held is within the sole discretion of the Chairperson.

W. Va. Code R. § 85-13-11 Subcommittees

11.1. The Council shall establish such subcommittees as it may from time to time determine are needed. Each subcommittee shall consist of at least two (2) Members. The Chairperson shall designate each subcommittee’s membership and chairperson. In addition, the Chairperson may designate the subject matter to be considered by each such subcommittee. Only those Members assigned to the subcommittee shall be required to attend a meeting of the subcommittee.

11.2. The Chairperson, in his or her discretion, may appoint Advisory Members as non-voting members of subcommittees.

W. Va. Code R. § 85-13-12 Minutes

12.1. The Council shall provide for the preparation of written minutes of all its meetings. All such minutes shall be available to the public within a reasonable time after their approval by the Council and shall include the following information:

12.1.1. The date, time and place of the meeting;

12.1.2. The name of each Member and Advisory Member present or absent;

12.1.3. All motions, proposals, resolutions, orders, ordinances and measures proposed, the name of the person proposing the same and their disposition; and

12.1.4. The results of all votes and, upon request of a Member, the vote of each Member, by name.

12.2. Minutes of executive sessions may be limited to material the disclosure of which is not inconsistent with the provisions of W. Va. Code §6-9A-4 listed above.

W. Va. Code R. § 85-13-13 Records of the Council - Public

Records of the Council are public records consistent with W. Va. Code §29B-1-3 and may be inspected and copied at a charge reasonably calculated by the Council or Commissioner to recover its reasonable costs associated with the production of documents.

85CSR13

85CSR13

Series 15 Vocational And Physical Rehabilitation

W. Va. Code R. § 85-15-1 General

1.1. Scope. -- This exempt legislative rule establishes the requirements and procedures to be followed by the West Virginia Workers' Compensation Commission, Insurance Commissioner, private carriers, self-insured employers, parties to pending claims, health care providers, vocational professionals, and others involved in the delivery or proposed delivery of physical or vocational rehabilitation services to claimants pursuant to W. Va. Code §23-4-9. Other types of health care services provided or proposed to be provided to injured workers under other provisions of W. Va. Code §23-4-3, are not within the scope of these rules.

1.2. Authority. -- W. Va. Code §23-4-9(b) and (e). Pursuant to W. Va. Code §23-1-1a(j)(3), rules adopted by the Workers’ Compensation Board of Managers are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- August 31, 2005.

1.4. Effective Date. -- October 1, 2005.

W. Va. Code R. § 85-15-2 Purpose of Rule; Cooperation

2.1. It is a goal of the workers' compensation program to assist workers to return to suitable gainful employment after a compensable injury. The optimal goal of the rehabilitation process should be to achieve the goals of the priority hierarchy set forth in Section 4.1. In order to assist injured workers to return to such employment and to encourage and assist employers in providing suitable gainful employment to injured employees, it shall be a priority of the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, to achieve early identification of individuals likely to need rehabilitation services and to assess/evaluate the rehabilitation needs of these injured workers. It shall be the goal of the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, and all interested parties to return injured workers to employment which shall be comparable in work and pay to that which the individual performed prior to the injury. If a return to comparable work is not possible, the goal of rehabilitation shall be to return the individual to alternative suitable gainful employment, using all possible alternatives of job modification, restructuring, reassignment and training, so that the individual will return to productivity with his or her employer or, if necessary, with another employer. It is the shared responsibility of the employer, the employee, the physical rehabilitation service provider, the qualified rehabilitation professional, the treating physician(s) and the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, to cooperate in the development of a rehabilitation process designed to promote re-employment for the injured employee.

2.2. Every injured worker and his or her employer are required pursuant to this rule to participate in rehabilitation evaluations, and the development, implementation, and completion of rehabilitation plans. Additionally, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, the injured worker, his or her employer, his or her treating physician(s), the physical rehabilitation service provider, and the qualified rehabilitation professional are required to share in the responsibility for the success of the individual injured worker's rehabilitation.

a. An injured worker who is fully participating in an authorized physical rehabilitation plan or in an authorized vocational rehabilitation plan for modified return to work, job search, training or other approved service, and who shows satisfactory progress toward completion of the plan is eligible to receive temporary total rehabilitation or temporary partial rehabilitation benefits. An injured worker who fails, without a showing of good cause, to participate in a rehabilitation evaluation, to participate in an authorized rehabilitation plan, or fails to show satisfactory progress toward completion of the plan, may be denied any applicable form of benefits or may have temporary rehabilitation benefits suspended effective the date the worker ended his or her participation in the rehabilitation plan, ceased to be cooperative in and/or comply with the rehabilitation plan, or ceased making satisfactory progress toward completion of the plan. The determination of whether a claimant is making satisfactory progress, within the meaning of this section, shall be within the sole discretion of the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable.

b. In determining whether an injured worker has cooperated in and/or complied with the rehabilitative effort, the following standards are to be used:

1. Whether medical, physical rehabilitation and/or and vocational opinion substantially concur that the treatment, service, or program is indicated to bring about a return to employment;

2. Whether it is reasonably safe and not attended by unusual suffering or risk for the injured worker to participate;

3. Whether it is likely that the treatment, service, or program will produce measurable physical and/or vocational improvement; and 4. Whether a person of ordinary prudence and courage would participate in the treatment, service, or program for his or her own betterment, regardless of compensation.

c. Employers who cooperate with the rehabilitation assessment/evaluation process and fully participate in authorized rehabilitation plans benefit from the rehabilitation process by minimizing the costs associated with work-related injuries. The Commission, Insurance Commissioner, or private carrier, whichever is applicable, must consider an employer's workers' compensation vocational rehabilitation record in assigning an experience rating if the employer is a subscriber to the extent allowed by legislative rules governing ratemaking and underwriting practices and Chapter 23 of the West Virginia Code. Employer's cooperation regarding rehabilitation efforts and plans includes, but is not limited to: full participation in the rehabilitation evaluation, reasonable efforts to provide reemployment opportunities to injured workers upon full release or release with restrictions, reasonable efforts to provide assistance to the injured worker returning to transitional, part time, modified or alternate employment.

d. This rule establishes the minimum standard for an employer providing assistance to an injured worker to return to employment; it is not intended to limit additional assistance an employer may provide a worker.

2.3. In making a ruling that a party has failed to cooperate or comply, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, shall issue a protestable order. Where there are disagreements between the injured worker, the employer, or the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, so as to cause the filing of a protest, the parties are encouraged to utilize the mediation process provided for by W. Va. Code §23-5-9(b).

2.4. Physicians and other health care providers are also responsible for assisting and encouraging injured workers to return to suitable gainful employment and providing assistance to employers in determining accommodations for each injured worker. Physician and other health care provider cooperation regarding rehabilitation efforts and plans includes, but is not limited to: the rehabilitation evaluation, full participation in providing updated medical documentation pertaining to current and anticipated treatment plans and restrictions to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, injured worker, employer, and other treating or consulting physician or other health care provider, encouraging and participating in communications between the injured worker and his or her employer, familiarity with the injured worker's essential job functions, cooperating with and timely responding to rehabilitation providers, and provision of medical documentation to assist in returning to transitional, part-time, modified or alternate employment. Failure by a physician or other health care provider to cooperate in rehabilitation efforts may result in suspension or termination of the physician or health care provider pursuant to W. Va. Code §23-4-3c.

2.5. Providers of vocational rehabilitation services and qualified rehabilitation professionals are encouraged to assist injured workers, employers, physicians and other health care providers to fully participate and cooperate in the rehabilitation process. The providers and qualified rehabilitation professional must be knowledgeable of all applicable legislative rules, exempt legislative rules, and statutory requirements that relate, in any way, to the provision of rehabilitation services. Failure of a vendor and/or a qualified rehabilitation professional to be fully cooperative in the rehabilitation process may result in suspension or termination of the vendor and/or qualified rehabilitation provider and/or his/her employer/primary contractor pursuant to W. Va. Code §23-4-3c.

W. Va. Code R. § 85-15-3 Definitions

As used in this exempt 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. "Commission" means the West Virginia Workers' Compensation Commission as provided for by W. Va. Code §23-1-1.

3.3. "Injury" and derivative words have the meaning ascribed to the term "injury" by W. Va. Code §23-4-1.

3.4. "Injured worker" and “claimant” mean an employee entitled to workers' compensation benefits as the result of a work-related injury, as provided under W. Va. Code §23-4-1.

3.5. "Injured worker's employer" or “employer” means an employer of the injured worker who is a chargeable employer in the claim either through its experience or through its private carrier. 3.6 "Suitable gainful employment" means employment which restores the injured worker as closely as possible to his or her pre-injury level of earnings. If this is not possible, suitable gainful employment means other work for which the employee is, or may become, suited by training, experience, or education, but not limited by his or her previous level of earnings.

3.7. "Physical rehabilitation services" means physician approved health care services, which will likely increase the injured worker's ability to return to suitable gainful employment. Physical rehabilitation services include but are not limited to work hardening and work conditioning programs or other Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, approved physical rehabilitation program.

3.8. "Physical rehabilitation services provider" means a provider of health care services, provided the provider is:

a. A medicare certified rehabilitation agency;

b. A certified outpatient rehabilitation facility;

c. A duly licensed health care practitioner;

d. A physical rehabilitation hospital;

e. A duly licensed acute care hospital.

3.9. "Physical rehabilitation hospital" means any of the following institutions or facilities:

a. A duly licensed hospital that meets the requirements for rehabilitation hospitals as described in section 2803.2 of the medicare provider reimbursement manual, part 1, as amended, or any successor provision, as published by the United States health care financing administration; and that, for its in-patient services, obtains on or before December 31, 1994, and thereafter maintains accreditation from the Joint Commission on Accreditation of Health Care Organizations and, further, on or before July 1, 1995, obtains and thereafter maintains accreditation from the Commission on the Accreditation of Rehabilitation Facilities.

b. A distinct rehabilitation unit in a duly licensed hospital which distinct part unit meets the requirements of section 2803.61 of the medicare provider reimbursement manual, part 1, as amended, or any successor provision, as published by the United States health care financing administration; or c. A facility operated by the West Virginia Division of rehabilitation services.

3.10. "Work Conditioning” means an intensive, work-related, goal-oriented conditioning program designated specifically to restore systemic neuromusculoskeletal functions (eg strength, endurance, movement, flexibility, motor control) and cardiopulmonary functions. The objective of the work conditioning program is to restore physical capacity and function to enable the injured worker to return to work. Program will be two (2) to four (4) hours per day, five (5) days per week, and for a period not to exceed four (4) weeks in duration, however, the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, on a case-by-case basis, may approve program extension.

3.11. "Work Hardening" means a highly structured, goal-oriented, individualized progressive and supervised treatment program designed to return the client to work. Work hardening programs, which are often interdisciplinary in nature, use real or simulated work activities designed to restore physical, behavioral, and vocational functions. Work hardening addresses issues of productivity, safety, physical tolerances, and work behaviors. Programs duration will be four (4) to eight (8) hours per day, five (5) days per week, and for a period of not to exceed four (4) weeks in duration, however, the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, on a case-by-case basis, may approve program extension.

3.12. "Assistive devices" means physical aides, appliances or mechanical devices that will increase the injured worker's independence or provide assistance in performing an essential job task to facilitate a return to suitable gainful employment.

3.13. "Vocational rehabilitation services" means professional services available to the injured worker under W. Va. Code §23-4-9 which are reasonably necessary to enable him/her to return to suitable gainful employment as soon as practical. This may include, but is not limited to, coordination of medical services, vocational assessment, vocational evaluation, vocational counseling, vocational rehabilitation plan development, vocational rehabilitation plan monitoring, job development and job placement. Furthermore, "vocational rehabilitation service" means services covered by W. Va. Code §23-4-9, which provide new skills or modified work to enable an injured worker to return to suitable gainful employment as soon as practical. Services may include, but are not limited to, Adult Basic Education, vocational-technical training, college training, on-the-job-training, travel expenses related to training, job modifications and placement tools.

3.14. "Vocational rehabilitation service providers" means licensed professionals, public agencies, companies and corporations which provide injured workers vocational rehabilitation services as defined in section 3.13 of this rule.

3.15. "Qualified rehabilitation professional" means a person who meets the criteria set forth in 85CSR 27, Qualified Rehabilitation Professional, which includes a person who is a certified case manager, certified rehabilitation counselor, certified disability management specialist, or certified rehabilitation registered nurse.

a. “Certified rehabilitation counselor” means that earned designation as awarded by the Commissioner on Rehabilitation Counselor Certification.

b. “Certified disability management specialist” means that earned designation as awarded by the Certification of Disability Management Specialists Commission.

c. “Certified case manager” means that earned designation as awarded by the Commission for Case Manager Certification.

d. “Certified rehabilitation registered nurse” means that earned designation as awarded by the Association of Rehabilitation Nurses.

3.16. "Rehabilitation plan" means a plan or a modified plan for physical and/or vocational rehabilitation designed to facilitate the injured worker's return to work developed in accordance with this rule by a qualified rehabilitation professional and approved by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable.

3.17. "Vocational evaluation" means a systematic evaluation of the injured worker's skills, aptitudes, interests and functional ability through standardized testing and may include work samples. A vocational evaluation may be used when an injured worker has a limited work history, limited perceived interests, suspected cognitive impairment or when additional information is required regarding the injured worker's transferable skills for appropriate rehabilitation plan development.

3.18. "Job analysis" means a systematic assessment of a specific job including essential functions, the physical and/or cognitive requirements, working conditions, work site structure/layout, tools and equipment used, required skills/abilities, and/or any other characteristic that may be pertinent to performing the job.

3.19. "Job development" means the process of consultation with employers and the development of job opportunities in a comprehensive, professional manner. The intent is to establish continuing and mutually beneficial relationships with potential employers through selective placement, job modification, and adjustment counseling. Job development activities should provide clients with an opportunity to reach their employment potential.

3.20. "Job placement services" means professional activities involved in assisting individuals to seek, obtain and maintain appropriate employment. It may include guidance in vocational decision making; a transferable skills analysis, training in job-seeking skills; supportive counseling; identifying job leads; negotiating with employers, supervisors and co-workers; and providing post-employment and follow-up services.

3.21. "Job seeking skills training" means teaching the injured worker how to obtain employment. Topics to be included in job search skills training include but are not limited to development of a resume, how to use a resume, completing applications, utilizing the want ads, cold calling techniques, networking, interviewing, cover and thank you letters, appropriate attire/hygiene, and tracking and developing job leads.

3.22. "Labor market survey" means an analysis of availability of jobs within a reasonable geographic region. The conclusions are based upon accumulation of data through employer contacts, review of help wanted listings, and use of published census wage and employment statistics. The survey is conducted considering employers within a reasonable distance of the injured worker's residence. The purpose is to determine if a proposed rehabilitation plan being considered has a reasonable likelihood of success.

3.23. "On-the-job-training" means a structured program under which an individual, over a specific vocational preparation period of time, learns a trade, business or occupation that will ultimately result in gainful alternative re-employment that is consistent with the claimant’s acquirable skills and residual physical capabilities. Each training program, and the employer providing the training must be approved on a case-by-case basis by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable.

3.24. "Adult Basic Education" means a training service to assist an individual in acquiring the academic skills necessary to compete in a job or educational setting. This service may include GED preparation and testing, computer skills enhancement, or developmental skills courses. Remedial instruction must be from an accredited academic, business or vocational school. Remedial services on a part time basis are permitted so long as the injured worker's participation in plan services, in conjunction with other approved vocational rehabilitation services, are equal to full time. Return to work plan documentation is required from the qualified rehabilitation professional regarding the injured worker's current academic standing, the academic goal and the specific plan steps necessary to reach that goal.

3.25. "Vocational -Technical training"- means formal instruction to provide an individual specific mechanical or industrial skills or technical expertise to be applied to an occupation or trade. Vocational-technical schools or community colleges not already accredited by the North Central Association of Colleges and Schools Commissions on Institution of Higher Learning or approved by the State Dept. of Education must be individually approved by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable.

3.26. "College training" means academic education to prepare an individual for an occupation of a professional or technical nature through a college or university accredited by the North Central Association of Colleges and Schools Commission on Institutions of Higher Learning.

3.27. "Placement Tools" means tools and or equipment or other adaptive devices necessary to return an injured worker to employment or to enable participation in an approved program such as on the job training or formal training.

3.28. “Transferable skills analysis” means a process by which jobs are identified that are consistent with the injured worker’s capabilities, skills, and residual physical abilities.

3.29. “Insurance commissioner” means the insurance commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code, or any designated third-party administrator of the Insurance Commissioner.

3.30. “Private carrier” means any insurer, including the successor to the Commission, authorized by the insurance commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code.

W. Va. Code R. § 85-15-4 Priorities

4.1. Vendors of vocational rehabilitation services and qualified rehabilitation professionals must utilize the following priorities. No higher numbered priority may be utilized unless the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, has determined all lower numbered priorities are unlikely to result in placement of the injured worker into suitable gainful employment. If a lower numbered priority is clearly inappropriate for the injured worker, the next higher numbered priority must be considered. The rehabilitation plan must explicitly state the reasons and rationale for the rejection of any lower numbered priority. The priorities are as follows:

1. Return to the same employer and pre-injury job;

2. Return to the same employer and pre-injury job with modification;

3. Return to the same employer in a different position;

4. Return to the same employer in a different position with on-the-job-training;

5. Employment by a new employer without retraining;

6. Employment by a new employer with on-the-job-training;

7. Return to work following enrollment of the injured worker in a retraining program which consists of a goal-oriented period of formal retraining designed to lead to suitable gainful employment in the labor market.

W. Va. Code R. § 85-15-5 Identification of Rehabilitation Candidates; the Rehabilitation Assessment/ Evaluation Process

5.1. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, may, in its sole discretion, determine whether a claimant would be assisted in returning to suitable gainful employment with the provision of rehabilitation services.

5.2. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, may authorize a rehabilitation evaluation by a qualified rehabilitation professional of its sole choosing to determine whether physical and/or vocational rehabilitation services are appropriate for an injured worker. No provider is entitled to referrals from the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, is in no way required to adopt any referral method or system designed to include any or all of the vocational rehabilitation service providers or qualified rehabilitation providers, and the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, has the sole discretion in the assignment of any referrals for an evaluation.

5.3. The rehabilitation evaluation process is comprised of a series of steps, as set forth in the following subsections.

a. Once referred to a vocational rehabilitation service provider or qualified rehabilitation professional, a qualified rehabilitation professional shall conduct a rehabilitation evaluation. In doing so, a qualified rehabilitation professional must: 1) conduct a personal interview of the injured worker; 2) contact, by telephone or otherwise, the injured worker's employer to ascertain return to work options and otherwise discuss the case; 3) obtain necessary input from the injured worker's attending physician and other treatment providers; and 4) analyze information about the injured worker's medical, educational, vocational, social, legal, and economic circumstances, including present physical and mental ability to participate in vocational rehabilitation services. The evaluation may also include additional vocational testing if the qualified rehabilitation professional opines that the testing is warranted in order to provide a full evaluation and the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, preauthorized the additional testing. The qualified rehabilitation professional must then decide and report in the form of a rehabilitation evaluation report, the format of which and method of transmission of which shall be approved by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, as to whether the injured worker is likely to benefit from vocational rehabilitation services based upon the rehabilitation evaluation. The qualified rehabilitation professional must also report whether or not the evaluation was complete, and if not why not, and whether the injured worker, the injured worker's employer, or the injured worker's attending physician and other treatment providers cooperated in the process and must state the facts that form the basis of the conclusion.

b. The qualified rehabilitation professional must issue the rehabilitation evaluation report to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, with copies to the parties within sixty (60) days of receipt of the referral. A proposed rehabilitation plan, signed by the qualified rehabilitation professional and preferably the injured worker, the injured worker's employer, may be included with the rehabilitation evaluation report. Upon receipt, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, may approve the plan as submitted, request modifications to the plan, or request plan development. Failure to provide the rehabilitation evaluation report within sixty (60) days of receipt of the referral shall cause a 10% reduction in the agreed to fee due and owing the vocational rehabilitation service provider or the qualified rehabilitation provider. Failure to provide the rehabilitation evaluation report within ninety (90) days of receipt of the referral shall cause a 20% reduction in the original agreed to fee due and owing the vocational rehabilitation services provider and/or the qualified rehabilitation provider. Finally, failure to provide the rehabilitation evaluation report within one hundred twenty (120) days of receipt of the referral shall result in no payment for the referral and shall require the vocational rehabilitation services provider and/or the qualified rehabilitation provider to immediately return the referral to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable,.

c. The purpose of a rehabilitation plan is to clearly identify the return to work objectives and to describe action steps to assist the injured worker in returning to suitable gainful employment. The following standards apply.

d. The injured worker is an active participant in rehabilitation plan development.

e. The plan must be signed by the injured worker and the qualified rehabilitation professional for the plan to be implemented. Failure to sign a plan the injured worker has actively participated in developing, without good cause, as determined in the sole discretion of the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, shall cause the suspension of all benefits payable to the claimant until such time as the plan is signed. The claimant is not entitled to the lost benefits upon signing the plan. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, shall reject the proposed plan based upon the claimant’s failure to cooperate if the claimant refuses to sign the plan and will thereafter, within fifteen (15) days of such acceptance or rejection issue a protestable order within fifteen (15) days.

f. The plan must clearly outline the specific goals and actions required to achieve the goals.

g. The plan must identify the respective responsibilities, if any, of the injured worker, the employer, the physician, the qualified rehabilitation professional, the Commission, Insurance Commissioner, private carrier or carriers, and other parties involved in the claim.

h. The time frames for completion of the plan must be specified.

i. The qualified rehabilitation professional must provide a plan justification explaining the need for rehabilitation services.

j. The qualified rehabilitation professional must provide plan rationale explaining how the goal was selected.

k. The qualified rehabilitation professional must describe placement prospects and earnings potential, if appropriate.

l. Criteria for completion and termination of the plan must be fully defined.

m. Costs associated with the services to be provided and the periods of temporary indemnity are to be listed in the plan.

n. The plan must be served upon the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, and all parties to the claim by the qualified rehabilitation professional.

o. A rehabilitation plan must require that all vocational rehabilitation services be delivered by providers who are qualified rehabilitation professionals. Except with the prior consent of the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, no other providers may deliver vocational rehabilitation services to an injured worker under an approved rehabilitation plan. To the extent it is economically and otherwise feasible, providers who are located in the injured worker's geographic area are to be given preference. In-state providers and out-of-state providers are both to be compensated pursuant to section 10 of these rules.

p. A rehabilitation plan that provides for vocational retraining must give preference to schools and training facilities located in the injured worker's geographic area, thereby reducing the need for the injured worker to travel extensively or to relocate. A plan may be denied by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, if it concludes, in its sole discretion, that the plan requires the injured worker to travel excessively or to locations unreasonably distant from his or her home.

q. Any rehabilitation plan developed and implemented under this rule is subject to the seniority provisions of a valid and applicable collective bargaining agreement, or arbitrator's decision there under, or to any court or administrative order applying specifically to the injured worker's employer, and will further be subject to any applicable federal statutes or regulations.

5.4. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, shall enter a protestable order, within twenty (20) days of receipt of the finalized rehabilitation plan signed by the qualified rehabilitation professional and the injured worker.

W. Va. Code R. § 85-15-6 Implementation of the Rehabilitation Plan

6.1. Until the termination of the Commission, an employer is permitted to object to the plan pursuant to section 5.4 of this rule. However, the implementation of the plan will proceed notwithstanding the objection. In the event that the employer is successful in challenging the plan, the employer's account will be adjusted to reflect the appropriate charge associated with the rehabilitation plan. In the event the plan has not been completed at the time of the ultimate decision on the protest, the plan will be modified, if necessary, to conform with the ultimate decision.

a. Upon termination of the Commission, the private carrier, and not the employer, will register objections and adjudicate claims matters on behalf of the employer in appropriate cases.

6.2. Upon request of any party or upon a determination by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, may order the suspension, termination, or modification of a rehabilitation plan based upon a showing of good cause including, but not limited to:

a. A change in the injured worker’s physical condition which does not allow the injured worker to continue pursuing the rehabilitation plan;

b. The injured worker's lack of satisfactory progress which indicates that he or she cannot complete the plan successfully;

c. A finding that an injured worker is not cooperating with a plan;

d. A finding that the rehabilitation plan is no longer necessary for the injured worker's re-employment;

e. A finding that a change in economic conditions has caused the rehabilitation plan to be inappropriate.

f. A finding that the injured worker’s employer is not cooperating and the failure to cooperate is an impediment to plan completion shall result in plan modification as necessary to accomplish the rehabilitation goal.

6.3. All physical and/or vocational rehabilitation services must be delivered in accordance with the rehabilitation plan developed under section 5 of this rule. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, may authorize the qualified rehabilitation professional to monitor compliance with and progress under the rehabilitation plan. Once authorized, the qualified rehabilitation professional must contact the injured worker and all other participating parties on a regular basis to monitor compliance with and progress under the plan. Report of these contacts must be submitted to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, in thirty (30) day intervals, unless otherwise directed by the Commission, self-insured employer or private carrier, whichever is applicable. Failure to so report may result in the denial of payment for services provided during the thirty (30) days and thereafter until the required report is received.

6.4. In the event it is later determined the rehabilitation services provided will not meet the goal of the plan, the vocational rehabilitation service provider and/or the qualified rehabilitation professional must notify the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, and recommend plan modifications as appropriate.

6.5. If the injured worker is not compliant with the rehabilitation plan, or is not making satisfactory progress under the plan, the vocational rehabilitation service provider and/or the qualified rehabilitation professional must immediately notify the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable. The determination of whether satisfactory progress is being made shall be a collaborative effort involving the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, and the vocational rehabilitation services provider. Failure to notify the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, may result in a closing of the file, a mandated return of the file to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, the finding of an overpayment to the vocational rehabilitation service provider and/or qualified rehabilitation service provider in an amount equal to the sum of all services provided to date on the file.

6.6. If, based upon reports of the qualified rehabilitation professional or other reliable evidence, the injured worker is not compliant with the rehabilitation plan, or is not making satisfactory progress under the plan, in the sole discretion of the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, all benefits payable to the injured worker may be suspended until such time as the injured worker becomes compliant or begins to make satisfactory progress under the plan.

W. Va. Code R. § 85-15-7 Payment of Indemnity Benefits

7.1. In every case in which the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, authorizes physical and/or vocational rehabilitation services pursuant to a rehabilitation plan, and the implementation of that plan has begun, the injured worker shall, if otherwise appropriate under applicable law, receive temporary total rehabilitation disability benefits or temporary partial rehabilitation benefits as provided in W. Va. Code §23-4-9.

7.2. As part of a rehabilitation plan, an injured worker may return to work at an alternate, modified or transitional work assignment on a temporary basis. The duration of the temporary work must be determined on a case-by-case basis by the qualified rehabilitation professional and be justified in the rehabilitation plan.

a. Whenever it is proposed that an injured worker return to work under section 7.2 of this rule, the employer, with the assistance of the qualified rehabilitation professional, must furnish the injured worker's treating physician, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, and all parties to the claim a statement describing the work in terms that will enable the physician to relate the essential tasks, and other material job functions, of the job to the injured worker's functional abilities. The treating physician must then advise the qualified rehabilitation professional within fifteen (15) working days of receipt of information pertaining to the essential tasks of the job whether the injured worker is physically capable of performing the work described and/or what additional testing or information is required to make this determination. When the information is furnished to the treating physician and the employer, the qualified rehabilitation professional shall inform the treating physician that the failure to respond within the time allotted may result in the Commission’s, Insurance Commissioner’s, self-insured employer’s or private carrier’s, whichever is applicable, issuance of a functional ability opinion. The injured worker may consent to undertake the work assignment without the approval of his or her treating physician. In cases where the injured worker has no treating physician or in cases in which the treating physician has not fully cooperated in the rehabilitation process, the Commission's independent medical evaluator, including its Office of Medical Services, or the medical evaluator of the Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, may provide a functional ability opinion.

b. Upon undertaking employment under section 7.2 of this rule, the injured worker's temporary total disability benefits, if any, will be terminated and he or she may become eligible for temporary partial rehabilitation benefits, if applicable under section 7.3 of this rule. If the work impedes the injured worker's recovery to the extent that he or she cannot continue to work or if his or her compensable condition worsens due to the work being performed, the temporary total payments, if applicable, shall, if otherwise appropriate under applicable law, be resumed when objective medical documentation is presented to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, directly relating the inability to work due to the compensable injury or results thereof. If the work ends or is no longer otherwise available, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, shall decide whether the injured worker has sufficiently recovered to permit the injured worker to return to his or her usual job or to other available work, or if other rehabilitative services are required to return the injured worker to employment. Benefits will not be reinstated solely because of lay-off or unavailability of work. If the decision is that the injured worker cannot return to employment, temporary total rehabilitation benefits or temporary total disability benefits, whichever applicable and otherwise payable under applicable law, shall be reinstated, if otherwise appropriate, but only for the period authorized by law.

7.3. If the injured worker, pursuant to a rehabilitation plan, returns to employment with the same employer or a new employer in either a full time or part time capacity, and to either gainful employment or to a transitional, modified or alternate work assignment, pursuant to section 7.2 of this rule, and if the injured worker's average weekly wage earnings are less than the average weekly wage earnings earned by the injured worker at the time of the injury, then he or she shall, if otherwise appropriate under applicable law, be entitled to receive temporary partial rehabilitation benefits. The injured worker's average weekly wage earnings upon return to work for the purposes of section 7.4 will be the injured worker's actual gross earnings, as reported to the state tax department and the federal internal revenue service and substantiated by payroll documentation or other information as requested by the Commission, Insurance Commissioner, or private carrier, whichever is applicable.

7.4. Temporary rehabilitation benefits are calculated, as follows:

a. The temporary partial rehabilitation benefit is seventy percent (70%) of the difference between the average weekly wage earned at the time of the injury and the average weekly wage earned at the new employment, to be calculated as provided under W. Va. Code §23-4-9(d);

b. The temporary partial rehabilitation benefits are not subject to the minimum benefit amounts required by the provisions of W. Va. Code §23-4-6(b); and c. The temporary partial rehabilitation benefits cannot exceed the temporary total disability benefits to which the injured worker would be entitled pursuant to W. Va. Code §23-4-6, -6d, and -14, during any period of temporary total disability resulting from the injury in the claim. The temporary partial rehabilitation benefits plan must be reviewed at least every ninety (90) days to determine if continuation of such plan is appropriate.

7.5. Temporary partial rehabilitation benefits are only payable during the implementation and successful progress toward completion of a rehabilitation plan. Upon termination of the plan, as provided for under this rule, or upon expiration of the plan, payment of all temporary partial and/or total rehabilitation benefits must be stopped regardless of the injured worker's level of wages.

7.6. Payments of temporary partial rehabilitation benefits for differences of five percent (5%) or less in the pre-injury average weekly wage and the new employment average weekly wage will not be made because the benefit gives no economic incentive to the injured worker and would be too costly to administer.

7.7. The injured worker cannot receive both temporary total disability benefits and temporary partial rehabilitation benefits for the same time period.

7.8. The injured worker can receive both temporary partial disability benefits and permanent partial disability benefits for the same period of time. The limitations on rehabilitation benefits set forth in W. Va. Code §23-4-9 and the limitations on temporary total disability benefits set forth in W. Va. Code §23-4-6(c) are separate limitations and the receipt of rehabilitation benefits shall not be applied against the limitations on temporary total disability benefits. Likewise, the receipt of temporary total disability benefits shall not be applied against the limitations on rehabilitation benefits.

7.9. The aggregate award of temporary total rehabilitation or temporary partial rehabilitation benefits for a single injury shall be for a period not exceeding fifty-two (52) weeks. That is, an injured worker is entitled to 52 weeks of temporary total rehabilitation benefits and 52 weeks of temporary partial rehabilitation benefits. These limitations do not apply to rehabilitation awards made on or before July 1, 2003.

7.10. If payment of temporary total rehabilitation benefits is in conjunction with an approved vocational rehabilitation plan for retraining, the period of temporary total rehabilitation benefits may be extended for up to an additional fifty-two (52) weeks, but shall never exceed a total of one hundred four (104) weeks.

W. Va. Code R. § 85-15-8 Rehabilitation Closure Report

8.1. The qualified rehabilitation professional authorized to assist the injured worker must file a rehabilitation closure report with the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, and all parties to the claim when it is determined that their involvement in the rehabilitation services are no longer necessary unless otherwise specified by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable.

W. Va. Code R. § 85-15-9 Registration of Rehabilitation Providers

9.1. Qualified rehabilitation professionals and other vocational rehabilitation vendors must register with the Commission, using forms prescribed by the Commission. Any rehabilitation provider who does not meet the requirements set forth in Rule 27 of Title 85 of the Code of State Rules cannot be accepted for registration.

a. Upon termination of the Commission, no registration is required of qualified rehabilitation professionals. Qualified rehabilitation professionals are required to verify and provide proof of their certification or qualifications to the Insurance Commissioner, self-insured employer or private carrier, whomever services are provided under this rule, or to their third party administrator or managed care provider. In turn the Insurance Commissioner, self-insured employer or private carrier, or their third party administrator or managed care provider is required to maintain this proof of certification or qualifications of the qualified rehabilitation professional.

9.2. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, must use only qualified rehabilitation service professionals in making rehabilitation referrals.

a. Rehabilitation services may also be provided by qualified rehabilitation professional employees of the West Virginia Division of Rehabilitation Services or qualified rehabilitation professional employees of the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable.

9.3. All rehabilitation services must be provided in accordance with rehabilitation plans implemented pursuant to these rules and must be monitored by the qualified rehabilitation professional employed by or under contract with the Commission or Insurance Commissioner or employed by the West Virginia Division of Rehabilitation Services, or under contract with a self-insured employer or private carrier, whichever is applicable. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, must remove or suspend from its list of vendors any provider of rehabilitation services who knowingly fails to comply with the provisions of these rules or a rehabilitation plan, or engages in other practices in violation of W. Va. Code §23-4-3c. Adherence to all applicable Codes of Ethics, including, but not limited to the Codes of Ethics associated with the certifications listed in 85 C.S.R. 27-3.3 is required and a breach of any applicable ethical provision shall be grounds for suspension and/or termination of the provider’s right to receive payments from the Commission, Insurance Commissioner, self-insured employer or private carrier whichever is applicable.

W. Va. Code R. § 85-15-10 Payment for Physical and Vocational Rehabilitation Services

10.1. The Commission or Insurance Commissioner, private carrier or self-insured employer whichever is applicable, will pay for physical and vocational rehabilitation services in accordance with the fee schedule in effect at the time the service is rendered, adopted by the Commission or Insurance Commissioner, whichever is applicable, pursuant to W. Va. Code §23-4-3 and otherwise as set forth in this rule. To the extent there are inconsistencies between the fee schedule and this rule, this rule shall govern. Only those physical rehabilitation services that are reasonable and necessary, in the sole discretion of the Commission, within the scope of the applicable rehabilitation plan, and otherwise meet the standards as outlined in Sections 3.7 and 2.2.b of this Rule and 85 C.S.R. 27, can be reimbursed pursuant to these rules.

10.2. Unless otherwise specified in a contractual agreement with a provider, the following services are considered overhead and the Commission or Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, will not pay for these services:

a. Administrative and supervisory salaries and related personnel expenses;

b. Office rent;

c. Depreciation;

d. Office equipment purchase and rental;

e. Telephone expense including long distance phone call charges;

f. Postage g. Shipping;

h. Expendable supplies;

i. Printing costs;

j. Copier costs;

k. Printing of fiche and department electronic files;

l. Maintenance and repair;

m. Taxes;

n. Automobile costs, maintenance, and mileage;

o. Insurance;

p. Dues and subscriptions;

q. Vacation, sick leave, and other expenses of a similar nature;

r. Internal staffing time;

s. Filing of material in case files;

t. Setting up files;

u. Activities associated with reports other than composing or dictating complete draft of the report (e.g., editing, filing, distribution, revising, typing, mailing, and any other related time spent by the vocational rehabilitation service provider reviewing the work of a qualified rehabilitation provider shall not be paid)

v. Generating and keeping internal record keeping forms;

w. Time spent on any administrative and clerical activity, including typing, copying, mailing, distributing, filing, payroll, record keeping, delivering mail, and picking up mail. This does not prohibit reimbursement for actual time spent writing/typing reports to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable.

x. Activities associated with counselors training, general discussions regarding office procedures, internal case file reviews by supervisors, meetings, and seminars;

y. Unanswered phone calls;

z. Any other item or service not specifically identified and separately billed;

aa. No payment will be made for reports prepared by physicians and submitted through the counselor; and bb. No payment will be made for any activity after notification by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, of case closure or plan termination, unless a closure report is requested at which time only those charges directly related to the preparation of the closure report will be approved.

cc. Upon termination of the Commission, self-insured employers and private carriers may contract for physical and vocational rehabilitation services with providers for fees greater or less than those contained in the fee schedule.

10.3. Any bill submitted to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, must include the following information:

a. Claimant’s name;

b. Claimant’s claim number c. Claimant’s social security number;

d. Dates of service;

e. Place of service;

f. Type of service;

g. Appropriate procedure code(s);

h. Charge, which must be broken down into 1/10th of an hour (6 minute) increments;

i. Total bill charge;

j. The name and unique identification number, if the provider has been assigned a number by the Commission or the Insurance Commissioner, of the qualified rehabilitation provider rendering the service;

k. Vendor number;

l. Date of billing;

m. An itemization of bills on Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, approved forms;

10.4. The expenditure for vocational rehabilitation shall not exceed twenty thousand dollars ($20,000) for any one injured employee. All services approved by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, as part of a rehabilitation plan, or the development thereof, shall be included in the twenty thousand dollar ($20,000) limitation, including, but not limited to, the following:

a. Vocational or on the job training;

b. Counseling, including all services rendered by a vocational rehabilitation service provider and a qualified rehabilitation professional. Counseling provided by psychiatrist or psychologists shall not be included within the $20,000 limitation. QRP charges for dates of service on or before May 5, 2004, shall not be included within the $20,000 limitation;

c. Assistance in obtaining appropriate temporary or permanent work site, work duties or work hours modification;

d. Job placement services;

e. Other services approved in the sole discretion of the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable.

10.5. Temporary total disability benefits, temporary partial rehabilitation benefits, and physical rehabilitation services are not to be included in the twenty thousand ($20,000.00) dollar limitation.

10.6. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, cannot reimburse providers for physical rehabilitation services which require prior authorization under the provisions of W. Va. Code §23-4-3, or any rule adopted there under, unless the physical rehabilitation services provider obtains prior authorization.

10.7. In order to obtain reimbursement for services rendered, including the costs of medicines and mechanical appliances or devices, physical and vocational rehabilitation services providers must submit a verified statement on forms (including in electronic format) prescribed by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable. The forms must be filed with the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, within six (6) months after the service is provided or the medicines, mechanical appliances or devices are delivered. Failure to timely submit a reimbursement form bars the provider from any right of recovery from the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, or any other party including, among others, the injured worker, the applicable employer, or any of their third party health care insurers.

10.8. All physical and vocational rehabilitation service providers are prohibited from making any charge against an injured worker or any other person, firm or corporation for any service rendered as a part of a rehabilitation plan or as a result of a compensable injury. Nothing in this section prevents another agency of any governmental unit, person, firm, corporation, or other entity from agreeing to reimburse a service provider for services rendered.

10.9. In the event that an injured worker insists upon the delivery of a physical and/or vocational rehabilitation service after being advised in writing by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, that the service has been determined not to be medically, physically, or vocationally necessary, the provider may charge the injured worker for the costs of such service notwithstanding the provisions of section 10.8, but only if the provider first informs the injured worker that he or she will be personally responsible for the costs of the service and informs the injured worker as to the amount of the charge. If the injured worker has other health care insurance which will pay for the service described in this section, then the provider may bill that insurer for the service and no provision of these rules prevents the provider from receiving reimbursement under the terms of the insurance policy.

10.10. "Without limiting the general nature of various statutes respecting criminal fraud, and by way of illustration and not in limitation, the following are deemed unlawful acts and practices:

a. Billing for services not actually performed;

b. Billing for expenses not actually incurred;

c. Billing with incorrect dates of service;

d. Offering consideration of any kind, including gifts, services or gratuities to Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, employees in exchange for or as a past reward for referring cases to the provider;

e. Failing to close claims for rehabilitation services at the earliest practicable date when the claimant can no longer benefit from such services. The rehabilitation professional will be consulted before the claim is closed for the purpose of determining the earliest practicable date of closure;

f. Providing false information in any statement to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable,, or forging or falsifying any record required to be kept by these Rules or any other statute or rule governing providers; and g. "Rolling in" unreimbursable time or expenses by adding hours to billable time or expenses.

10.11. All providers and employers shall retain for five (5) years and provide to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, on request and without a subpoena hard copies of the source underlying any bill, invoice, report, etc. submitted to the Fund Commission, Insurance Commissioner, private carrier or self-insured employer by electronic or other means.

W. Va. Code R. § 85-15-11 Trial Return to Work

11.1. The provisions of W. Va. Code §23-4-7b regarding trial return to work have been reinstated and will be implemented by the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, until such time as the statutory provisions regarding trial return to work are terminated.

W. Va. Code R. § 85-15-12 Employer-Preferred Vocational Rehabilitation Services

12.1. Prior to termination of the Commission, any employer who desires to contract directly with one or more preferred vocational rehabilitation providers to provide vocational rehabilitation services to its injured workers and require its employees to use the preferred provider(s), shall notify the Commission of its contract and designation on forms prescribed by the Commission. Such selected providers must be registered with the Commission as required by Section 85-15-9. Notwithstanding the employer’s ability to select a preferred provider, the Commission shall remain the sole referral authority. An employer may identify to the Commission claimants whom it wants to be considered for rehabilitation services.

a. Upon motion by the injured worker or the employer, or upon its own initiative, the Commission may, with a showing of just cause, assign or reassign the injured worker to a qualified rehabilitation provider other than the provider designated by the employer. Such cause might include, but not be limited to, past or present family or social relationships between the injured worker and the employer’s preferred rehabilitation services provider, common financial interests between the injured worker and the employer’s preferred rehabilitation services provider, or evidence that the rehabilitation process or provider is not in compliance with this rule.

b. All preferred vocational rehabilitation providers shall comply with this Rule and Commission’s established guidelines, rules, regulations, and policies. Additionally, all preferred vocational rehabilitation providers shall utilize all reporting forms and reporting processes adopted by the Commission.

c. A vocational rehabilitation provider must be in good standing with the Commission in order to be designated an/or maintain its designation as a preferred provider. Additionally, the preferred provider shall adhere to the Commission’s fee schedule for reimbursement of expenses and any expenses which exceed the fee schedule shall be the sole responsibility of the employer.

12.2. Upon termination of the Commission, private carriers, who provide workers’ compensation insurance to an employer, are not obligated to accept contracts with the employer’s preferred vocational rehabilitation providers.

W. Va. Code R. § 85-15-13 Transfer to the Insurance Commissioner

Upon termination of the Commission, responsibility for the regulatory enforcement of this exempt legislative rule shall transfer to the Insurance Commissioner to be administered in a manner otherwise consistent with chapter twenty-three of the West Virginia Code. All other provisions of this rule which have been rendered moot by, or are otherwise in conflict with Senate Bill 1004, shall be administered by the Insurance Commissioner in a manner consistent with chapter twenty-three of the West Virginia Code.

W. Va. Code R. § 85-15-14 Severability

If any provision of these rules or the application thereof to any entity or circumstance is held invalid, the invalidity will not effect the provisions or the applications of these rules which can be given affect without the invalid provisions or application and to this end the provisions of these rules are declared to be severable.

85CSR15

85CSR15

Series 16 Guidelines For Permanent Impairment Evaluations, Evidence, And Ratings

W. Va. Code R. § 85-16-8 Severability If any provision of this rule or the application thereof to any entity or circumstance shall be held invalid, such invalidity shall not effect the provisions or the applications of this rule which can be given affect without the invalid provisions or application and to this end the provisions of this

rule are declared to be severable.

MEETING ATTENDANCE

SHEET

MEETING OF MAY 22,

COMPENSATION PROGRAMS PERFORMANCE COUNCIL

YOUR NAME ( Please Print)

WHO YOU

REPRESENT

DO YOU WISH TO

( Please Print)

SPEAK? (Y/N)

TIM LEACH

Greene, ketchum, BAile, NO Babette Roberson + Twee ACORDIA l SWV No Oyun C. Photos Bowles Rice McDavid Duff + dove Pamtaux ESC no - Toir Jo athina ESC NOTE: IF YOU WISH TO BE PUT ON A MAILING LIST TO RECEIVE NOTICES OF FUTURE MEETINGS, PLEASE INCLUDE YOUR MAILING ADDRESS. YOU NEED NOT FURNISH YOUR ADDRESS AGAIN IF YOU ARE ALREADY ON THE LIST.

BEFORE THE WORKERS' COMPENSATION PERFORMANCE COUNCIL

IN RE: PUBLIC HEARING ON THE PROPOSED

GUIDELINES FOR PERMANENT IMPAIRMENT

EVALUATIONS, EVIDENCE AND RATINGS

TRANSCRIPT OF PROCEEDING had at the public hearing in the above-referenced matter, held on Monday, May 22, 1995, at 10:20 a.m. in the Days Inn Convention Center, Flatwoods, West Virginia, pursuant to notice.

ANGELA A. ROBINSON, Subcontractor REBECCA L. BAKER Certified Court Reporter 2300 Shadyside Road #5 St. Albans, West Virginia 25177 (304) 727-2965 95 JUN 30 AM II: 08 BEP-LEGAL DIVISION APPEARANCES FOR THE WORKERS' COMPENSATION PERFORMANCE COUNCIL MR. PAUL E. THOMPSON MR. DAN SCHERDER MR. TOM ROTENBERRY MR. THAD EPPS MR. FRED TUCKER MR. RICHARD HUMPHREYS MR. DAVID HARRIS MR. EVERETT SULLIVAN MR. ANDREW RICHARDSON MR. JOHN KOZAK INDEX Discussion Among Parties Certificate of Reporter May 22, 1995.

MR. RICHARDSON: I would like to call to order this public hearing of the Compensation Program's Performance Council. The issue before the council today are amendments to Title 85, Series 16, legislative rules and guidelines for permanent impairment evaluations, evidence and ratings.

These regulations were adopted last fall by the compensation program's performance council to be used in the determination of the extent of the disability suffered by an injured worker. These regulations substantively were effective February 1st as conducted by physicians throughout West Virginia and on February 10th the West Virginia State Code was changed to base permanent partial awards solely on impairment as opposed to the concept of disability.

That's necessitated the amendments that are before us today.

The date and time of the public comments having arrived, I've reviewed the list of attendees at the meeting and would note that no one wishes to speak to those regulations. I have, however, asked John Kozak, the director of legal services for the West Virginia Bureau of Employment Programs, to briefly provide an overview to the changes that the regulations propose.

If anyone shows during that time of his comments we will certainly welcome their input.

Otherwise, we'll adjourn until 1:00 for the performance council meeting.

MR. KOZAK: Thank you. If you have a copy of the revision in front of you, strike through and then underline what I think may be best to follow. Briefly go through there; it's not very long in the first place. As the commissioner mentioned, one of the primary reasons for the revision was the passage of 15 and its requirements to the whole body medical impairment as the standard for disability cases and the permanent total disability cases.

There was some thought that because of the specific mention and Senate Bill 250 doing that, that the impairment rules as previously thought may not be the rules this statute calls for. I think that briefly covers -- rather too much of a hair splitting argument but nonetheless we're going through the exercise. It also helps just to clean up the rules.

As a result on Page 1 in Subsection 1.1, regarding the procedures, forms, evidence, and standards which is placed in Senate Bill 250 language where the impairment rule was discussed. And the change goes on to note that it's for the evaluation of claimants and the determination of the claimant's degree of whole body medical impairment. And the operative phrase there is whole body medical impairment. This is the new standard and the rule throughout to reflect that that is the standard of physicians and others have to follow.

There will be a new filing date, effective date, which I've struck through. And of course, 1.5 was put in there originally to explain why the rules related to implementation and what not and that later was no longer necessary. 1.5 is no longer necessary.

At the top of Page 2, the remainder of Section 2 there, one paragraph. The main point there is that the old rule, the current rule refers to disability in addition to impairment and disability factors are no longer pertinent for permanent partial ratings. That's the reason why the one sentence in the middle is struck through and then it goes on to note that the rules to be used by the Senate Bill 250 and interdisciplinary examining board in determining the 50 percent threshold requirement as it evaluates those for permanent total awards.

At the bottom of Page 2 there is a section there, 3.3. Striking the very end of the sentence there where it talks about guides, where it says "or such later edition as may have then been published."

There's a rather technical argument that's been made about something that hasn't been established yet by another body. And if the rule is ever amended -- or I should say the guides are ever amended -- it will be necessary to come back to the performance council and amend this rule.

Basically there's a body of case law that says you shouldn't do that. So, that's basically a correction of the original version of that. 3.4 brings into -- people's attention specifically to the glossary in the rule itself and the impairment guidelines themselves in Page 315 of the guidelines as published and specifically what's noted there is that's where they define -- they refer to whole person impairment, which is saying the rules definition of whole body impairment. 5.1.4 on Page 4 it relates a lot of reference to the same as opposed to impairment.

On Page 5, in Subsection 6.1, the original

rule has there plus the sentence that's underlined added and that was just to make clear that the occupational pneumoconiosis board can use the AMA Guides. The original rule exempted them from doing so since they have a separate rule of how they accept OP awards as well their practices.

I talked to Dr. Walker on a couple of occasions now and they do have to make a change in their process. Before their rulings have been based upon the degree of pulmonary impairments and that has to change whole body impairment now as well. And I thought at the time that this was put together that the board should choose to go to the AMA guides for that determination and this would allow them to do so but not require them to do so.

Also on Page 5, 6.3, the original version of this contained as an attachment the evaluation guide for mental and behavioral disorders. Since then that guide has been amended by the health care advisory panel and is now out for public comment, has been out for public comment as a separate rule.

Comment period ended for that and the comments have now been collected and given back to the health care panel for their review and advice to the claim's committee.

So, basically what 6.3 does is takes that subject matter out of this rule and into another rule now and they will be consider it later. 6.4, bottom of Page 5 carries over. It's also a Senate Bill amended. You'll recall that in Section

23-4-6 (f) of the code, there's this rather recent list of what happens if different pieces of the body are lost and how much each is to be rated. The language to that section reads that numbers that were given included a minimum amount of permanent partial to be awarded. Senate Bill 250 changed that to say that that is the amount that is to be awarded, which puts West Virginia in the same scheme with most other states that have a schedule like that.

Talking to Peter Barkley (phonetic) he indicated that we were the only state that he was aware that had a schedule to a minimum and not a set amount.

So, Senate Bill 250 put us into a set amount. So, the reference to minimum there involves the rest of that sentence ._ If it is a scheduled injury, then that's the amount that you get and that's all. There is no more impairment rating.

And, of course, those injuries which automatically become permanent total awards and losses, both limbs, both eyes, that sort of thing. And there was a reference in the rule that needs struck out.

This revision does not apply to that. That is still a conclusive presumption. And if you're misfortunate enough to fall under 6 (m), you're still going to get the permanent total award.

There's one I jumped over and I want to go back and pick up. On Page 3, 4.3, that little section is dealing with the statute's section 7a(c) (1) . That is the statute in one place provides that a treating physician can give an opinion of up to 15 percent permanent partial impairment disability and that it has to be accepted by the division without further question.

The change here is saying that the impairment

rule will apply to the physicians putting together that 15 percent rating so that they do have to follow the AMA guides and it has to be impairment ratings as opposed to disability ratings. So, that's the direct change from what the original rule had said because the original had said that the impairment rule did not apply because a physician was taking into account the other disability factors. Since those are no longer

part of the code's definition of what permanent partial is, then it's necessary to reverse 4.3 language and say now that the term does not apply to that.

That's really all the comments I have on the rules. I note that they are increasingly being used and litigated over a number of states. Texas most recently coming out of its 1991 Reform Act has as part of its program, eluded whether or not to use the AMA guides.

And as a matter of fact, the AMA has intervened in Texas to allow them to do so. The situation there was a bit different in the sense that they were saying that there would also be a disability as well as impairment and I think our statute limits it now strictly to impairment.

But anyway, the Texas Supreme Court ultimately upheld the Texas Statute on that. And I think there are something like 14 or 15 other states that are either by statute or regulations adopting the guides for their impairment rating systems. Any questions?

MR. SULLIVAN: Of the states that have -- is there any -- do you have any opinion as to how this will work?

MR. KOZAK: I think any system like this is going to have its faults. Even the AMA states in the rules themselves that they're not scientifically completely satisfied and they're continuing to move forward.

I think that some of the problems that the other states have had is when they tried to apply them too rigidly. And the revision continues allowing some individual physicians to use some other system as long as the physician explains why its necessary. And I think having that loophole, if you will, that a physician can use and explain why with John Doe's situation the rules don't make any sense and allow us to handle that.

I think that overall the Fourth Edition has been proven to be more conservative than the previous edition since the numbers have come out in most areas.

One of the things that our staff is looking at is the computer program put together by which results of the evaluations -- physical measurements have been put together and put the numbers in the system and it comes out the range for evaluation results. And that is taking some of the more negative uses of the factors out of the picture and allowing the type of range --.

MR. RICHARDSON: Paul, go ahead.

MR. THOMPSON: John, in the letter from Greene, Ketchum, Bailey and Tweel on April the 3rd, they bring out some fine points there. Senate Bill 250 was intended to reduce the expenditures of the Workers'

Compensation Fund and reading this letter and the examples that he has given under the final paragraph and last paragraph of the summary, if what they have listed in this letter then it seems that there is confusion and not particularly reduction in finances pertaining to doctors and the examination. It seems to me like that's going increase if the substance of this letter is right and I would like to have an exclamation if this letter does reflect the truth as to this bill.

MR. KOZAK: I think as I mentioned overall, the guides are more conservative as far as the outcome. I think there are specific areas where they will result in greater awards as Mr. Leach has set out in the letter here. It is reflective of that. They have changed, for instance, how pain is dealt with in some of the other areas. They have two different ways now, a preferred way and a secondary way for certain orthopedic injuries that happen. I think the best I can respond to that is that the AMA guides are the best available sources in the literature at this point.

There's not an alternative to it, other than allowing doctors to go back to their own individual systems and I believe one of the reasons why that council adopted the initial -- was to try to come with some sort of standardization of systems so that folks are rating similarly and have similar injuries rather necessarily one push benefits down and one push benefits up.

Again, as I mentioned to Mr. Epps, I think the loophole that's in the rule that allows the exceptional case to be dealt with exceptionally rather than trying to put the square peg through a round hole, other deal with some of the inherent affects that still remain in the rulings.

MR. THOMPSON: What happens to paragraphs one, two and three on the first page? Has that been clarified?

MR. KOZAK: As I was mentioning the AMA does not like to have a rule to use as a final disability determination system in the sense of having disability include the vocational factors and the other things beyond just physical impairment. That's what the Texas litigation was all over.

Again, as I mentioned, the Texas Supreme Court ultimately did uphold using the rules. The most recent cases of jurisdiction have also upheld using them. I think as long as there's a flexibility left for individual peculiar cases to be dealt with peculiarly that the courts should continue to allow that. You know, there is at least one case in West Virginia which arguably allow the agency to doctor them by practicing, not by rules of the court as we touched on earlier, as far as -- MR. THOMPSON: Give me an explanation of the summary .

MR. KOZAK: An explanation of what?

MR. THOMPSON: The summary of that letter from the attorney.

MR. KOZAK: I think part of what is going on is the impairment rating measures the degree of effect on the body itself. The Fourth Edition treats the outcome of the surgery differently than they did in the Third Edition. They don't give bad outcomes of surgery as much weight as the Fourth Edition does. And I can have folks come up with the exact reasoning for that.

I don't have it with me as to why they made that change but that wasn't specific policy when they put the Fourth Edition together. They weren't as concerned with the badness or goodness of the outcome of surgery itself so much as the remaining impairment. To function I should say. Now, as to the scientific basis for doing that, I'll have to try to find that for you.

MR. THOMPSON: Will they be relying on the Third or Fourth Edition?

MR. KOZAK: The rule will be relying upon the Fourth as the current does.

MR. THOMPSON: Has consideration for this been applied to final argument for public hearing today?

MR. KOZAK: Well, this is the only comments we've received so far as far as written comments and we're not receiving any public comments today. Mr.

Leach is present and may want amplify on his letter or respond to what I'm saying about it.

MR. THOMPSON: I'm sorry I didn't know that was Mr. Leach.

MR. KOZAK: The period doesn't close until the 5th and we'll be going through the claim's committee and let them respond to that. And I suspect the claim's committee will be going through Mr. Leach's letter quite specifically. And I'll be contacting Health Care Panel people to try and get some specific answers to those questions.

MR. THOMPSON: Thank you.

MR. SULLIVAN: Comment period end June 5.

MR. KOZAK: Yes. June 5th at 5 o'clock.

MR. RICHARDSON: Any other questions for John? Dan?

MR. SCHERDER: No.

MR. RICHARDSON: David?

MR. HARRIS: No.

MR. RICHARDSON: Everett?

MR. SULLIVAN: No.

MR. RICHARDSON: John, I have one question. 6.5 refers to the -- includes conclusive presumptions under 23-4-6 (m). I want you to conform or repute my understanding of that. A person does not need to literally lose an arm and a leg or to literally lose both legs or whatever. However, if it's an issue of their affective usage.

MR. KOZAK: As I recall the wording is the use of, loss of use of and I know that if you have -- a paraplegic for instance can have a loss of use of both legs and would fall under 23-4-6 (m) as far as permanent total. There are cases out there that don't fall under that provision as far as my understanding of the policy. Someone may have a stroke, where that would leave one side of the body paralyzed, an arm or leg for instance, and they would still qualify under 6(m) if the stroke were somehow work induced.

MR. RICHARDSON: The reason I'm bringing that to your attention is the example Tim used. He gave three examples where the AMA guides and this is an indicative issue. That the loss of both legs that they are in three different places in the guides and I would point out that our law would apply to all three of those as I understand it.

MR. KOZAK: Right. The rules as far as what the statute specifically addresses in 6 (m), the statute numbers is controlled. You don't use the AMA guides so that if you lose a limb -- one place -- I for forget the number -- that that's the number that you're going to result in if you lose both legs. 6 (m) is going to apply. But when you get to the guide for basically nonscheduled injuries, which is anything not contained in 6 (m) or 6(1). Most other states that have been in a system like this for some time and never had the minimum language, the battle has always been between the employer and the claimant to get the people off of a scheduling order. Try to find some reason why this particular injury -- even though it looks like it involves a loss of an arm for instance but really has something else going on with it in addition that should be treated as a scheduled injury.

I suspect what's going to happen we're going to be joining the rest of our states and having battles over that and get away from just doctors hollowing at each other over what a specific injury --.

MR. RICHARDSON: My memory of our schedule is in comparison to the guides as a general rule our upper extremity use was lower in the guides generally.

The lower extremities on this was higher in the guides.

MR. KOZAK: As a general rule, that's correct.

MR. RICHARDSON: In addition to that, one area where we are distinguished from some states is that some states have actually begun to try to schedule some soft-tissue injuries.

MR. KOZAK: That's correct.

MR. RICHARDSON: And we have been meeting with the injured back or the injured knee or things of that nature .. The joints -- they came up with a scheduled amount. This is what you get under their code. And we have not attempted to do that. We do not intend to amend the schedule itself for the legislature.

MR. TUCKER: After these Series 16 and comments about that has been discussed. Has there been discussion with HCAP about the possibility of increased medical costs due to the AMA guidelines?

MR. KOZAK: I think there will be an increase in cost of the evaluation. Again, the guide is not to be used for treatments. The evaluations will be more time consuming for the physician if they do them correctly so that they will be more costly.

I'm trying to remember what the original physical notes, the bill were for the upper back. I'll be the first to agree that there was an amount of money put into that physical note that projected that increase in cost. There shouldn't be any change as far as that from this version and the first version of the

rule because they're still the same guides. There shouldn't be a change in costs. But there will be more cost as of February 1st of this year. As far as the outcome, again, as I said a couple of times generally they're going to be resulting in lower ratings than before but not across the boards. There are exceptions in some areas.

MR. TUCKER: I'm thinking about maybe involving more specialists than they would when getting evaluations. You know, we got doctor guidelines -- AMA -- is HCAP going to have any input into that? We may have more consultation with other doctors.

MR. KOZAK: Well, one purpose in standardizing the evaluation in the opinion process of the guides is, of course, that there should be a reduction in the number of different evaluations that are needed. If it works the way anticipated and has been working to my knowledge, after several months operating under the first version of this, there has been less of a need for so many doctor reports.

I think that as for this software program that I mentioned, there's more wide use by the division and more widely used outside the division. And that will take a lot of the argument out as to how the results of the evaluations should be used to calculate the final numbers. As far as more experts or not -- one of the things I think that you have to concentrate on is that since we're talking about an evaluation or impairment as opposed to treatment of that sort of thing, the need for a state board certified orthopedist or orthopedic type of evaluation isn't as necessary as it is to have somebody who's qualified to be able to use the guides themselves.

So for instance, I would anticipate that a chiropractor could become very proficient in knowing how to apply the guides, taking measurements, and coming up with a final result and would again through training, experience and that sort of thing become more credible than an orthopedist for instance.

Of course, that wouldn't be true as far as treatment and stuff like that. Focusing upon what the specific issue is, I would see no problem why a general practitioner type, chiropractor type couldn't become as proficient in the use of the guides as an orthopedist or nurse or whatever.

MR. TUCKER: What about the division? Are they going to have any anticipation of being able to rely on any type of specialist to agree of disagree with the impairment rating that Dr. Jones gives?

MR. KOZAK: You might want to address that to Mr. Burdette in the afternoon session. What I can gather second and third hand is that they recognized, stated that it was less of a necessity for referring to the specialists for this impairment rating itself. At least in our general type of cases.

MR. TUCKER: Thank you.

MR. RICHARDSON: Other questions for John?

John, thank you very much.

Lois, Pam, Beth, Lynn, Tim, Pam last chance for a bite of the apple if you would like to provide any comments.

Okay. Then I'm going to declare the public hearing adjourned at approximately 11:08.

(Whereupon, the deposition was concluded) > ## REPORTER'S CERTIFICATE STATE OF WEST VIRGINIA, COUNTY OF KANAWHA, to-wit:

I, Angela A. Robinson, Court Reporter and Subcontractor for Rebecca L. Baker, Official Reporter, do hereby certify that the foregoing is, to the best of my skill and ability, a true and accurate transcript of all the proceedings as set forth in the caption hereof. angelach Robinson ANGELA A. ROBINSON, Court Reporter Subcontractor for Rebecca L. Baker, Official Reporter MENIS E. KETCHUM LARRY A. BAILEY BEP-LEGAL DIVISION LAWRENCE J. TWEEL JOHN H. BICKNELL 95 APR -5 AM 11: 47 TIMOTHY G. LEACH BERT KETCHUM Greene, Ketchum, Bailey & Jueel Attorneys and Counsellors at Law 419 ELEVENTH STREET P. O. BOX 2389 HUNTINGTON, WEST VIRGINIA 25724 304/525-9115 FAX: 304/529-3284 1-800-479-0053 April 3, 1995 COMPENSATION PROGRAMS PERFORMANCE COUNCIL C/O JOHN H. KOZAK P O BOX 3922 CHARLESTON WV 25339-3922 ## RE: PROPOSED REVISED RULES - SERIES 16 GUIDELINES FOR PERMANENT IMPAIRMENT RATINGS Dear Members of the Council:

I would like to express my comments regarding this rule proposed by your committee. My objection concerns the exclusive use of the A. M.A. 's "Guides to the Evaluation of Permanent Impairment" for determining Permanent Partial Disability awards.

I recently attended an A. M.A. conducted seminar in Charleston concerning the use of the "Guides". The comments of the speakers many of whom had authored parts of the "Guides" - were very informative and you should be aware of them.

First: the A.M.A. insists that the "Guides" must not be used to determine monetary impairments. This statement is emphasized in the introduction and attempts in other states to so utilize the "Guides" have resulted in ongoing litigation. The "Guides" are a diagnostic medical tool and are not intended for monetary rating purposes. Misuse of this tool for such purpose corrupts the tool and ruins its medical benefit for which it was intended. Speaker after speaker stood up and emphasized that these "Guides" are "not the Bible".

Second: the "Guides" are full of errors and mistakes which have not been fully identified and corrected.

Third: the "Guides" are internally inconsistent. Depending upon which body part is the location of the injury, identical symptoms and findings result in different impairment ratings. For example: the amputation of both legs results in a 64% impairment ## RE: PROPOSED REVISED RULES - SERIES 16 GUIDELINES FOR PERMANENT IMPAIRMENT RATINGS page -2rating, but the loss of use of both legs confining a patient to a wheel chair is an 80% impairment, and paraplegia due to spine injury is a 70% impairment. That is just one of many examples of inconsistencies.

Fourth: the current edition allows the examining physician to chose which of several "models" for determining impairment are to be used. The results of the impairment rating fluctuates widely depending upon which model is used. However, the "Guides" does not dictate which model must be used.

Fifth: the Guides require so many more diagnostic tests in order to determine impairment that the costs of examinations for the Division, the employer, and the claimant are going to increase multi-fold. For instance, full flexion and extension spine x-rays are required for spine injury. My clients currently pay my examiners in the neighborhood of $300-$350 per exam. I was approached at the seminar by a doctor who is going to be doing exams in full compliance with the "Guides" and he is going to charge $2500-$4000 per exam depending upon how many specialists must be consulted. I can only assume that employers' and Commissioner's examiners will have similar charges increases. Did we really intend to take money away from overcharged employers and from injured workers and give it to disability examiners?

Sixth: the exclusive use of the "Guides" is going to result in increased litigation, not less litigation as anticipated. The exam procedures demanded by the "Guides" are so complicated, numerous, and detailed that lawyers will have to cross-examine many more doctors about their examinations. That means more money to doctors for witness fees. Combining the exclusive use of the "Guides" with the 50% threshold for Total Disability application and with the new limitations on reopenings makes every 1% rating during a claimant's working life vitally important to claimant and employer alike.

Therefore, many small awards that would not have been protested in the past will now be subject to litigation. That results in more money paid by the employers to their lawyers and more money paid by the injured workers to their lawyers.

Seventh: the examining physicians in attendance at the seminar were unable to agree on the "Guides" impairment ratings of model cases. Even without the disagreement over which "model" of impairment to use, doctors are not going to be in the uniformity of opinion that the advocates of the "Guides" predict. ## RE: PROPOSED REVISED RULES - SERIES 16 GUIDELINES FOR PERMANENT IMPAIRMENT RATINGS Eighth: according to the authors speaking at the seminar, the "Guides" make no allowance for pain. Pain is built into the Diagnoses Related Estimate (D.R.E. ) model and no allowance is permitted for the medical fact that pain varies from individual to individual and is impairing in and of itself.

Finally: the "Guides" have many anomalies in them that result in unfair ratings for both employers and claimants. For instance, on spine injuries the results of surgery - either positive or negative - are not included in the impairment rating (see page 100). If, hypothetically, a patient had a cervical disc injury which was 15% impairing and the surgery was a bad outcome resulting in paralysis, that patient would still have only 15% impairment under the "Guides". Contrarily, if the same patient had a marvelous result and ended up completely symptom free and back to work, the impairment would still be 15%. Surely neither the employer nor the injured worker would believe the results to be fair in one case or the other.

Another example of anomalies: the "Guides allow for up to 20% impairment for sexual dysfunction caused by injury. That component has almost never been a portion of disability awards in the past.

In summation, relying exclusively on the "Guides" corrupts a medical tool by misusing it. The result will be unfair ratings for both sides, increased costs for both sides, more payments to doctors, more time in court, awards for conditions not traditionally covered by disability awards, and denial of awards for impairing conditions.

Thank you for considering our comments.

Very truly yours, Tamist 6. 6each Timothy G. Leach tgl ## RESPONSE TO COMMENTS 85 CSR 16 ----- REVISION "GUIDELINES FOR PERMANENT IMPAIRMENT EVALUATIONS, EVIDENCE, AND RATINGS"

The only comment received on this revision was a letter dated April 3, 1995, from Mr. Timothy G. Leach, Esquire, of the law firm of Greene, Ketchum, Bailey & Tweel. A copy of the letter is attached. Although a public hearing was held on May 22, 1995, at which several members of the public were in attendance, no comments were presented.

The only person to testify at the public hearing was the Director of the Bureau's Legal Service Division who explained the rule and addressed questions posed by members of the Compensation Programs Performance Council. A copy of the transcript of that public hearing is attached.

With regard to Mr. Leach's comments, the points he raised were also raised with regard to the original filing of the predecessor version of this rule. In addition, the same points were raised when the state of Texas adopted the "Guides to the Evaluation of Permanent Impairment," (4th edition 1993). In a test case, the Texas Supreme Court addressed each of the points and held against each of them. Texas Workers'

Compensation Commission vs. Garcia, 893 S.W.2d 504 (Texas 1995.

For the those reasons, the objections to the rule were rejected and the rule as submitted was approved without changes.

KEN HECHLER

Secretary of State MARY P. RATLIFF Deputy Secretary of State A. RENEE COE Deputy Secretary of State CATHERINE FREROTTE Executive Assistant Telephone: (304) 558-6000 Corporations: (304) 558-8000 STATE OF WEST VIRGINIA ## STATE OF WEST VIRGINIA SECRETARY OF STATE Building 1, Suite 157-K 1900 Kanawha Blvd., East Charleston, WV 25305-0770 WILLIAM H. HARRINGTON Chief of Staff JUDY COOPER Director, Administrative Law DONALD R. WILKES Director, Corporations (Plus all the volunteer help we can get)

FAX: (394) 558-0900

94 NOV -3 AM II: 47

BEP-LEGAL DIVISION

TO: John Kozak AGENCY: Workers' Compensation FROM: JUDY COOPER, DIRECTOR, ADMINISTRATIVE LAW DIVISION DATE: November 1, 1994 THE ATTACHED RULE FILED BY YOUR AGENCY HAS BEEN ENTERED INTO OUR COMPUTER SYSTEM. PLEASE REVIEW, PROOF AND RETURN IT WITH ANY CORRECTIONS. IF THERE ARE NO CORRECTIONS, PLEASE SIGN THIS MEMO AND RETURN IT TO THIS OFFICE. YOU WILL BE SENT A FINAL VERSION OF THE RULE FOR YOUR RECORDS.

PLEASE RETURN EITHER THE CORRECTED RULE OR THIS FORM WITHIN TEN

(10) WORKING DAYS OF THE DATE YOU RECEIVED THIS REQUEST. CALL IF

YOU HAVE ANY QUESTIONS.

SERIES: 16 TITLE: 85 Workers' Compensation * THE ATTACHED RULE HAS/ BEEN REVIEWED AND IS CORRECT.

SIGNED :

JohHKp TITLE OF PERSON SIGNING:

Director, Legal Services Division DATE :

November 18, 1994 * THE ATTACHED RULE HAS BEEN REVIEWED AND NEEDS CORRECTING.

CORRECTIONS HAVE BEEN MARKED.

THE SIGNED :

TITLE OF PERSON SIGNING:

DATE :

NOTE: IF YOU ARE NOT THE PERSON WHO HANDLES THIS RULE, PLEASE

FORWARD TO THE CORRECT PERSON.

Series 17 Electronic Submittal of Invoices and Receipt of Payments

W. Va. Code R. § 85-17-1 General

1.1. Scope. -- This exempt legislative rule establishes a program to require acceptance of disbursements by electronic transfer from the State-Administered Workers’ Compensation Funds to vendors and claimants, pursuant to the provisions of W. Va. Code §23-3-5.

1.2. Authority. -- W. Va. Code §§23-1-1(e), 23-2C-5, 23-2C-8 and 23-3-5. Pursuant to W. Va. Code §23-2C-5(c)(2), rules adopted by the Workers’ Compensation Industrial Council are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- May 28, 2021.

1.4. Effective Date. -- July 1, 2021.

W. Va. Code R. § 85-17-2 Purpose

2. The purpose of this rule is to implement the provisions of W. Va. Code §23-3-5 and to establish a program to require acceptance of disbursements by electronic transfer from the State-Administered Workers' Compensation Funds to vendors and claimants.

W. Va. Code R. § 85-17-3 Definitions

As used in this rule, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

3.1. “Claimant” means an employee of an employer subject to Chapter 23 of the West Virginia Code who has sustained or received a personal injury in the course of and resulting from his or her covered employment, or in the case of death, an employee’s dependents, if any, and who makes a timely application for compensation or benefits.

3.2. “State-Administered Workers’ Compensation Funds” means the “Old Fund,” “Uninsured Employer Fund,” “Self-Insured Employer Guaranty Risk Pool,” and the “Self-Insured Employer Security Risk Pool,” all created pursuant to W. Va. Code §23-2C-6, and further includes the “Coal-Workers’ Pneumoconiosis Fund,” created pursuant to W. Va. Code §23-4B-2. The State Treasurer is the custodian of the State-Administered Workers’ Compensation Funds, and each individual fund is a separate and distinct fund upon the books and records of the State Auditor and State Treasurer. Disbursements from the State-Administered Workers’ Compensation Funds are made upon requisition from the Insurance Commissioner to those entitled to receive benefits from the funds.

3.3. An “invoice” is any legal demand, whether written, oral, or by computer-generated medium, for the payment by the Insurance Commissioner to a vendor.

3.4. “Vendor” means any health care provider or other entity who performs a service or provides a thing of value to a claimant or who performs a service or provides a thing of value to the Insurance Commissioner in relation to the Insurance Commissioner’s responsibilities in regard to the State-Administered Workers’ Compensation Funds or who performs a service or provides a thing of value to the Insurance Commissioner’s third-party administrators in relation to their responsibilities in regard to the State-Administered Workers’ Compensation Funds, and who then submits an invoice or otherwise seeks payment from the Insurance Commissioner or the Insurance Commissioner’s third-party administrators for the rendering of that service or thing of value.

3.5. “Insurance Commissioner” means the Insurance Commissioner of West Virginia.

3.6. “Private Carrier” means any insurer authorized by the Insurance Commissioner to provide workers’ compensation insurance pursuant to Chapters 23 and 33 of the West Virginia Code, but shall not include self-insured employers.

3.7. “Self-insured employer” means an employer who has been granted self-insured status under the provisions of W. Va. Code §23-2-9.

W. Va. Code R. § 85-17-4 Electronic Payment to Vendors

4.1. Any vendor who, on or after August 1, 2021, submits an invoice for payment from one of the State-Administered Workers’ Compensation Funds to the Insurance Commissioner, or the Insurance Commissioner’s third-party administrator, may be required to receive payment by electronic means if required to do so by the Insurance Commissioner, State Auditor and/or State Treasurer.

4.2. Any vendor who wishes to receive payment from one of the State-Administered Workers’ Compensation Funds shall, if required by the Insurance Commissioner, State Auditor and/or State Treasurer, register with the State Auditor’s Office to receive payment through the State’s Electronic Funds Transfer (EFT) payment system, through the State’s purchasing card (P-Card) program or through any other electronic means deemed acceptable. The vendor shall provide such additional information as the Insurance Commissioner, State Auditor and/or State Treasurer may require to effectuate the payments.

4.3. Any vendor who does not provide the necessary information in order that payments may be made electronically or who fails to otherwise cooperate with the requirements of the Insurance Commissioner, State Treasurer or State Auditor to accept payments by electronic means, may not receive payment on any submitted invoice until such information is provided or cooperation is obtained. The Insurance Commissioner, State Auditor and/or State Treasurer may cease issuing paper checks to vendors seeking payment from the State-Administered Workers’ Compensation Funds after August 1, 2021.

W. Va. Code R. § 85-17-5 Electronic Payments to Claimants

5.1. Any claimant receiving payment from a State-Administered Workers’ Compensation Fund must, on or before August 1, 2021, register to receive a direct deposit payment through the State’s Electronic Funds Transfer (EFT) payment system. This includes payments for permanent total disability benefits, permanent partial disability benefits, temporary total disability benefits and/or dependent’s benefits.

5.2. Claimants may register to receive direct deposit payments through the State’s Electronic Funds Transfer (EFT) payment system by requesting a direct deposit form from the third-party administrator assigned to their claim or by contacting the Claims Services Division of the Offices of the Insurance Commissioner for assistance.

5.3. Claimants who do not register to receive direct deposit payments through the state’s Electronic Funds Transfer (EFT) payment system by completing a direct deposit form on or before August 1, 2021, may be automatically enrolled by the State Auditor in the West Virginia Pay Card Program and may receive a prepaid card in lieu of a paper check or direct deposit. The prepaid card will automatically be reloaded with the claimant’s workers’ compensation benefit payment every month, or twice a month, in accordance with the appropriate benefit payment schedule.

5.4. The Insurance Commissioner, State Auditor and/or State Treasurer may cease issuing paper checks to claimants for benefits paid from the State-Administered Workers’ Compensation Funds after August 1, 2021.

W. Va. Code R. § 85-17-6 Exemptions

Any vendor or claimant who believes that the imposition of the requirements of all or part of this rule will cause a severe economic hardship or other extreme burden upon that vendor or claimant may file a written petition with the Insurance Commissioner requesting an exemption from all or part of the requirements of this rule. Exemptions are generally discouraged, not guaranteed and shall only be granted at the discretion of the Insurance Commissioner, State Auditor and/or State Treasurer, whichever is applicable.

W. Va. Code R. § 85-17-7 Private Carriers and Self-Insured Employers

This rule shall have no force and effect over private carriers and self-insured employers. However, a private carrier or self-insured employer may establish its own program regarding payment of workers’ compensation benefits to claimants or payments of invoices to vendors by electronic means. Nothing herein shall permit any private carrier or self-insured employer to pay a claimant less than the required benefit rate set by statute or pay a provider less than the amount established by the Insurance Commissioner’s fee schedule or the rate negotiated pursuant to a preferred provider, managed care, or other medical cost containment relationship with providers of medical, hospital, or other health care as permitted by W. Va. Code § 23-4-3, if applicable.

85CSR17

85CSR17

85CSR17

Series 18 Self Insurance, Self Administration And Third Party Administrators

W. Va. Code R. § 85-18-1 General

1.1. Scope. -- This exempt legislative rule addresses employers approved to administer and provide their own system of compensation to their injured employees, pursuant to W. Va. Code §23-2-9. This rule applies to employers who previously were in this status, currently are in this status or enter this status at some point in the future, and to all liabilities of an employer pursuant to being in this status. This rule also applies to the qualifications of third party administrators hired by self-insured employers to help administer workers’ compensation claims filed by the injured workers of self-insured employers.

1.2. Authority. -- W. Va. Code §§23-2-9; 23-2C-22; 33-2-10(b); and 33-2-21(a). Pursuant to W. Va. Code §§23-2C-5(c)(2) and 33-2-10(b), workers’ compensation rules proposed by the Commissioner and approved by the Industrial Council are not subject to legislative approval as would otherwise be required under West Virginia Code §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- July 18, 2008.

1.4. Effective Date. -- August 17, 2008.

W. Va. Code R. § 85-18-2 Purpose of Rule

The purpose of this rule is to provide for the administration of a system of self-insurance consistent with the specific provisions and purposes of W. Va. Code §23-2-9.

W. Va. Code R. § 85-18-3 Definitions

As used in this rule, the following terms, words, and phrases have the meanings stated unless in any instance where such term, word, or phrase is employed and the context expressly indicates that another meaning is intended.

3.1. “Audited financial statements” mean the financial statements accompanied by an independent auditor’s report which provide reasonable assurance about whether the audited employer has presented fairly the financial position, results of operations, and cash flows in conformity with generally accepted accounting principles or those of another recognized accounting body. This assurance is derived through a systematic process, governed by generally accepted auditing standards or Public Company Accounting Oversight Board standards, of objectively obtaining and evaluating evidence regarding assertions about economic actions and events to determine whether (1) financial information is presented in accordance with established or stated criteria, (2) the entity has adhered to specific financial compliance requirements, if applicable, or (3) the entity’s internal control structure over financial reporting and/or safeguarding assets is suitably designed and implemented to achieve the control objectives.

3.2. "Commissioner" means the Commissioner of Insurance of the State of West Virginia.

3.3. “Decision” means a written statement issued by the Commissioner containing the Commissioner's findings of facts and conclusions as to any issue presented to the Commissioner under this rule. Such decisions include, but are not limited to, notices of delinquency and notices of default. Any purported “decision” which is not in writing has no legal effect under this rule. “Decision” does not include a written statement in the form of e-mail.

3.4. “Default” for the purposes of a self-insured employer means the failure by a self-insured employer to cure a delinquency after notification within the time specified in the notice.

3.5. “Delinquent” means a self-insured employer has failed, without good cause, to timely pay workers’ compensation benefits or to make any other payment due under the terms of chapter twenty-three of the West Virginia Code or the rules promulgated thereunder.

For purposes of this subsection, “good cause” means the self-insured employer has:

a. Failed to receive notice of a properly entered order; or b. Failed to act on an order that has been entered in substantive error, is on its face obviously in error as to the amount due or mandates the payment of temporary total disability benefits in excess of those permitted by law.

3.6. “Dependent” has the meaning ascribed to that term by W. Va. Code, §23-4-10(d).

3.7. “Employee” has the meaning ascribed to that term by W. Va. Code §§23-2-1 and 23-2-1a.

3.8. “Employer” has the meaning ascribed to that term by W. Va. Code §23-2-1, which includes, but is not limited to, any individual, sole proprietor, firm, partnership, limited partnership, limited liability company, joint venture, association, corporation, company, organization, receiver, estate, trust, guardian, executor, administrator, government entity or any other entity regularly employing another person or persons for the purpose of carrying on any form of industry, service or business in this state.

3.9. “Injury” means compensable injuries or illnesses within the meaning of W. Va. Code §23-4-1 et seq.

3.10. “Payments” are obligations of the self-insured employer for workers’ compensation benefits to their injured employees or any other obligations due under the terms of chapter twenty-three of the West Virginia Code or the rules promulgated thereunder.

3.11. “Payroll” means the term as defined in the most current approved filing of the Commissioner’s designated rating organization for workers’ compensation.

3.12. “Quarter” means the four calendar quarters: January 1 through March 31; April 1 through June 30; July 1 through September 30; and October 1 through December 31 of each calendar year.

3.13. “Self-insurer” and “self-insured employer” mean employers who are eligible and have been granted self-insured status under the provisions of W. Va. Code §23-2-9

3.14. “Industrial Council” is the body created pursuant to W. Va. Code §23-2C-5.

W. Va. Code R. § 85-18-4 Self Insurance Status

4.1. Self insurance status. An employer may become self-insured if the Commissioner, with the approval of the Industrial Council, determines the employer meets the financial responsibility and procedural requirements set forth in W. Va. Code §23-2-9, and in this rule.

4.2. An employer owned by another business may have its self-insured workers’ compensation risks guaranteed by a parent, if the relationship between the employer and parent is adequately documented, as determined by the Commissioner, and if the parent can satisfy the financial responsibility requirements set forth in W. Va. Code §23-2-9 and this rule

4.3. Any employer granted the privilege of self-insured status shall give security or bond in the form, of the type, and in the amount required by the Commissioner, with the approval of the Industrial Council, pursuant to W. Va. Code §23-2-9 and this rule. Additionally, any employer granted the privilege of self-insured status shall abide by the requirements for maintaining, modifying, or terminating the self-insured status, as set forth in W. Va. Code §23-2-9 and this rule.

W. Va. Code R. § 85-18-5 Application for Self Insurance

5.1. An employer may apply for self-insured status by filing with the Commissioner an application for self-insured status in the form prescribed by the Commissioner. If an employer relies on the audited financial statements of its parent to be granted self-insured status, the relationship between the employer and the parent must be documented on the application, and the parent company must provide a parental guaranty in a form acceptable to the Commissioner. The required parental guaranty must be received and accepted by the Commissioner before the application for self-insured status can be processed.

5.2. A disclosure of the employer's management and financial structures and the employer's audited financial statements for each of the three (3) fiscal years preceding the date of application must be attached to the application. If a parent business is to insure the employer's self-insured workers’ compensation risk, the parent's disclosure of management and financial structures, and its audited financial statements for the three (3) years preceding the date of application must also be attached to the application. The employer shall disclose to the Commissioner all of the business entities acquired, bought, transferred or merged by or into the employer applicant. Failure to disclose this information at the time the application is filed without good cause, as determined in the sole discretion of the Commissioner, may result in rejection of the application a. The employer's application, the required audited financial statements and other information must be signed and sworn to by:

1. Either the president alone or vice-president and secretary or assistant secretary if the employer making application is a corporation or limited corporation;

2. All of the partners if the employer making application is a partnership;

3. If the employer making application is a limited liability company (“LLC”), then by all of the general members;

4. The owner if the employer making application is a sole proprietorship; or 5. The appropriate officer(s), partner(s), member(s) or owner(s) of the parent shall also sign and swear to the application and information included therewith, as described in this subdivision, if the employer making application is relying on the financial statements of the employer’s parent in making the application.

b. If the employer is a government agency, the criteria used to determine financial stability and guaranties may be modified to accommodate for governmental accounting and other issues related to a going concern. Any modifications allowed in these cases will take into consideration the risk to the self-insured employer community.

5.3. The employer making application may provide the Commissioner with any additional information deemed relevant to its financial stability. After reviewing the application and information included therewith, the Commissioner may request additional information from the employer or parent. The applicant must provide the information within the requested time frame in order for the application to be processed.

5.4. The employer applying for self-insured status shall pay to the Commissioner a non-refundable application processing fee at the time each application is filed. The minimum application fee is $2,500.00. If it is determined that the cost of processing the application will exceed $2,500.00, the application fee may be modified by the Commissioner. If the original application cannot be processed or is considered to be invalid, future applications made by the same employer are subject to additional filing fees.

5.5. An employer who insures its West Virginia workers’ compensation risks through coverage from a private carrier may apply at anytime to self-insure its workers' compensation risk. If the application is approved by the Commissioner and Industrial Council, the self-insured status will be effective on the first day of the calendar quarter following the month in which the application was approved. An employer new to the state of West Virginia, who has never had any West Virginia workers’ compensation obligations, may apply for self-insured status in anticipation of engaging in employment operations in West Virginia which will subject the employer to such obligations: Provided, That until the employer’s application is granted, the new employer shall be required to secure its West Virginia workers’ compensation obligations through a private carrier.

a. The Commissioner will evaluate the application and assess whether the employer qualifies for self insured status. The Commissioner will make a recommendation to the Industrial Council within ninety (90) days of receiving the completed application and any additional requested information. The Industrial Council, at its next regularly scheduled meeting, will render a decision approving or disapproving the application.

b. Each approved applicant for self-insured status is required to secure its West Virginia self-insured workers’ compensation liability in accordance with the provisions of 85 CSR 19, “Risk Pools,” and this rule.

5.6. Employers applying for self-insured status must continue to make timely premium payments to their West Virginia private carrier, if applicable, until self-insured status is approved by the Industrial Council and the status is effective.

W. Va. Code R. § 85-18-6 Reconciliation and Settlement of Applicant’s Account

6.1. The Commissioner will review the standing of any employer making application for self-insured status regarding the West Virginia Workers’ Compensation Old Fund and Uninsured Fund and any other potential liabilities owed to the State of West Virginia pursuant to chapter twenty-three of the West Virginia Code or the rules promulgated thereunder. The Commissioner will not approve any application for self-insured status made by an employer whose record upon the books of the Commissioner shows any money owed pursuant to chapter twenty-three of the West Virginia Code or rules promulgated thereunder until the employer has paid in full all existing liabilities.

6.2. This section applies equally to any outstanding liabilities as described herein owed by any employer with whom any owner, officer, partner or member of the applying employer was previously affiliated as an owner, officer, partner or member. In other words, the employer making application for self-insured status will not be approved until all liabilities of all employers with whom any owner, officer, partner or member of the applying company is or was previously affiliated have been paid in full.

W. Va. Code R. § 85-18-7 Coverage for catastrophic occurrences

In addition to all other security required to be posted for the purpose of maintaining self-insured status under this rule and 85 CSR 19, the Commissioner may require self-insured employers to post an additional amount of security, procure a policy of excess insurance, or both, for the purpose of covering potential catastrophic occurrences. Whether a self-insured employer is required to post security and/or maintain a policy of excess insurance pursuant to this section, and, if so, the amount of security and/or excess insurance required, shall be determined by the application of objective criteria by the Commissioner which will be used to determine the need for additional financial protection against catastrophic risks. Any policy of excess insurance or security required in this section shall be in a form approved by the Commissioner. The self-insured retention amount of any excess policy as described in this section shall be subject to the approval of the Commissioner.

W. Va. Code R. § 85-18-8 Security and Bond

8.1. In accordance with the provisions of the rules of the Commissioner, self-insured employers must secure certain obligations for payments. In such instances where security or bond is required by the Commissioner, the security or bond shall be tendered to the Commissioner in accordance with this section.

8.2. Acceptable types of security and bond include, but are not limited to, occurrence type security or bond, marketable securities, and letters of credit. The Commissioner has sole discretion to determine that a particular type of security or bond is acceptable or unacceptable.

a. If the self-insured employer obtains an occurrence-type security or bond, the security or bond is liable in the place of the employer should the employer be unable to meet its obligations for any or all injuries or deaths that may occur during the time period for which the security or bond is effective. The security or bond remains liable at the time any awards for the injuries or deaths are subsequently made and for the entire time period in which benefits will be paid under the awards, including death benefits to surviving dependents.

No language to the contrary contained in any writing associated with or included as a part of the security or bond shall defeat this obligation of the security or bond posted by a self-insured employer as described herein. Every surety, guarantor, warrantor, or other person or entity who purports to stand in the place of the self-insured employer for the payment of benefits shall be considered to have given the security or bond in compliance with this subsection, and no statement or disclaimer in the security or bond shall negate this requirement. The surety company issuing the bond must meet and maintain the Commissioner’s financial strength requirements. The Commissioner shall review the financial strength of the issuers of all the surety provided by the self-insured employer in the course of the Commissioner’s annual review and recommendation to the Industrial Council.

b. If the self-insured employer wishes to post marketable securities to meet its obligation for security or bond, the securities must satisfy the following requirements:

1. The securities must be fixed term debt instruments with a fixed and determinable principal amount;

2. The issuer of the securities must be a governmental entity or governmental agency or corporation of this state, or any other state or of the United States;

3. The maturity date of the instrument cannot be more than ten years from the date the securities are posted with the Commissioner; and 4. The payment of both principal and interest are denominated and payable in United States dollars with the interest payable at fixed periodic payment dates and at a fixed rate of the principal amount of the indebtedness.

c. If the self-insured employer wishes to post a letter of credit to meet its obligation for security or bond, the letter of credit must satisfy the following requirements:

1. The letter of credit must be issued by a bank operating in the United States;

2. The letter of credit must utilize the letter of credit forms approved by the Commissioner and in accordance with this rule; and 3. Before it will be considered security for self-insured risks, the letter of credit must contain an “evergreen” clause as specified by the Commissioner, which holds the issuer responsible for the employer-applicant's liability resulting from all injuries incurred by or deaths of the employer's employees prior to the expiration of the letter of credit. In the event that the employer-applicant is unable to obtain the issuance of the evergreen form of letter of credit, then the employer-applicant must obtain permission from the Commissioner to use the letter of credit with a non-renewal draw clause. The employer must also provide the form letter of Authority and Acknowledgment which authorizes the draw of the entire amount of the letter of credit in the event of cancellation of the letter of credit, although the self-insured employer is not then in default under chapter twenty-three of the West Virginia Code or the rules promulgated thereunder.

3. The bank issuing the letter of credit must meet and maintain the Commissioner’s financial strength requirements.

8.3. Employers who are required by chapter twenty-three of the West Virginia Code and the rules promulgated thereunder to provide security shall post an amount as determined by the Commissioner to be adequate and sufficient to compel or secure payment of compensation and expenses to the employer's employees, or their dependents, as required by chapter twenty-three of the West Virginia Code and the rules promulgated thereunder.

The Commissioner shall utilize a financial ratio summarization, based upon a comparison of the employer-applicant's solvency, efficiency and profitability ratios to a specific industry's ratios, as defined, for example, in the current Dunn & Bradstreet Industry Norms and Key Business Ratios, in evaluating an employer's financial strength and in making a recommendation to the Industrial Council as to an appropriate amount of security. Whenever possible, the commission shall make a comparison of ratios using the employer’s workers' compensation industry classification.

a. If the Commissioner determines that, based on this rule and 85 CSR 19, a self-insured employer's securities or bonds are inadequate or insufficient, the Commissioner shall notify the employer. Thereafter, the Commissioner shall enter a decision directing the employer to increase its securities or bonds by the amount needed to reach the adequate and sufficient level for all time periods originally intended to be covered by the inadequate or insufficient security or bond. An inadequate or failed security or bond includes, but is not limited to instances where the entity issuing the security or bond, based upon the sole discretion of the Commissioner, is no longer a viable entity or, for whatever reason, can no longer meet its obligations.

b. The Commissioner shall provide a reasonable amount of time for the employer to obtain the increased or added security or bond or develop a work out agreement and obtain the first installment payment. Absent extenuating circumstances, as determined by the sole discretion of the Commissioner, the period to secure additional security or period to develop a work out agreement and obtain the first installment payment may not exceed ninety (90) days from the date of the Commissioner’s notification. The increased security or bond must meet the requirements set forth in this rule.

c. A self-insured employer's failure to obtain additional bond or security, as required by the Commissioner’s order, may result in a revocation of the privilege of self-insurance and termination of the employer's self-insured status. The Commissioner shall issue a notice specifying the effective date of any such action or actions.

W. Va. Code R. § 85-18-9 Self-insured Employer’s Modification of Business

9.1. In the event a self-insured employer reorganizes its business, assumes additional liability, acquires new assets or operations, buys an additional business, merges with another business, or otherwise changes its operation in any manner which is likely to impact its West Virginia workers' compensation claims liability, or ability to satisfy its financial responsibility requirements, the self-insured employer must immediately notify the Commissioner of the business modification. The notice of modification must contain specific information as to the nature of the modification, including, but not limited to, a copy of the executed contract causing the modification and the names of other employers or businesses affected by the modification, any information filed with the Securities Exchange Commission related to the modification, any audited or restated audited financial information related to the modification which was not previously submitted to the Commissioner and any pro forma financial information prepared pursuant to the modification. The employer shall also provide any additional information requested by the Commissioner regarding the transaction, within the timeframes specified.

9.2. If, after reviewing and analyzing all relevant information regarding the self-insured employer’s business modification, the Commissioner determines that the transaction creates a substantial new risk to the self-insured community, the Commissioner may, in his or her sole discretion, require any entity involved in the relevant transaction to file a new application for self-insured status.

9.3. Under subsections 9.1. and 9.2. of this section, the Commissioner will review the employer's security and bond requirements following any changes made to the self-insured employer’s account and, if necessary, make an appropriate recommendation to the Industrial Council for an adjustment to the security requirements.

9.4. If the modification of business requires processing that includes any type of an actuarial analysis, a $2,500.00 processing fee shall be assessed.

9.5. If the modification causes a self-insured employer to no longer qualify for the privilege of self-insured status, the Commissioner, with the approval of the Industrial Council, may terminate the self-insured employer’s status in accordance with the provisions of section 14 of this rule. Settlement of estimated liability at the time of revocation shall be determined in accordance with the provisions of this rule.

W. Va. Code R. § 85-18-10 Voluntary Termination of Self-Insured Status

10.1. A self-insured employer may terminate its self-insured status with the following conditions:

a. The employer shall remain forever liable for all accrued and contingent liabilities which the employer has incurred as a result of being self-insured;

b. The employer shall provide written notice to the Commissioner a minimum of thirty (30) days prior to the termination of its status. Upon the expiration of the thirty (30) days of notice, self-insured status shall terminate the first day of the succeeding calendar quarter.

c. The employer shall post bond or security in an amount estimated sufficient to cover the costs of all future accrued and contingent liabilities resulting from the period of self-insured status. The security or bond is subject to the Commissioner’s approval of the form, type and amount of the security or bond.

10.2. A self-insured employer may enter into a contract for sale of its business or for transfer of some or all of its assets to another entity, including, either expressly or impliedly, an agreement as to the assumption by the purchasing entity or transferee of the self-insured employer’s accrued and contingent liabilities resulting from the employer’s self-insured status: Provided, That in the event such a contract is entered into, the provisions of this rule shall be adhered to, both with regard to section 9 (“Self-Insured Employer’s Modification of Business”) and this section. Any contract described in this subsection and any resulting sales, transfers and consequential effect on the employer’s self-insured liabilities are subject to approval of the Commissioner prior to taking effect.

W. Va. Code R. § 85-18-11 Self-Administration of Claims

11.1. All self-insured employers shall administer their own claims consistent with the provisions of chapter twenty-three of the West Virginia Code and the rules promulgated thereunder. An injured worker who is an employee of a self-insured employer is entitled to all of the workers’ compensation benefits, pursuant to chapter twenty-three of the West Virginia Code and the rules promulgated thereunder, as those afforded to injured workers whose claims are paid and administered by private workers’ compensation insurance carriers. These same benefits include the proper and timely payment of medical bills and compensation.

11.2. Notifications.

a. Each new self-insured employer shall within five (5) working days notify, in writing, the following persons, entities or adjudicatory bodies involved in active claims matters that the self-insured employer is self-administering its claims:

1. Claimants;

2. Claimant representatives;

3. All parties to the claim;

4. All adjudicatory bodies that are currently proceeding in the claim; and 5. Vendors who are rendering services in the claim.

b. Each self-insured employer shall within five (5) days notify its employees that it is self-administering its claims. This notice must be posted at each of the employer’s places of business within the State.

c. The self-insured employer is required to state in each notice, whether the notice is individually written or posted, that the self-insured employer, and not the previously utilized private carrier, is the primary contact for submitting invoices, claims inquiries, legal notices, medical reports and other communications concerning the claim.

11.3. Claims Contact. The self-insured employer shall provide to and maintain with the Commissioner a current name, address and telephone number of the contact person responsible for administering payments on behalf of the injured employees.

W. Va. Code R. § 85-18-12 Payroll Reports, Assessments and Surcharges

12.1. Upon filing an application for self-insured status, an employer acknowledges its obligation to continue to make all payments and file all reports required by chapter twenty-three of the West Virginia Code and the rules promulgated thereunder.

12.2. On or before the last day of the first month of each quarter, for the preceding quarter, each self-insured employer shall file with the Commissioner a sworn statement of the total payroll of all of its employees subject to chapter twenty-three of the West Virginia Code for the preceding quarter.

12.3. In addition to properly and timely administering and paying workers’ compensation claims, self-insured employers are also responsible for timely remittance of debt reduction and regulatory surcharges pursuant to W. Va. Code §23-2C-3 and W. Va. CSR §85-6-1 et seq. and, if applicable, remission of self-insured pool assessments pursuant to W. Va. CSR §85-19-1 et seq. Failure to timely remit the surcharges and assessments will result in delinquency and, if the delinquency is not cured, default, which can subject the self-insured employer to penalties, including revocation of self-insured status.

W. Va. Code R. § 85-18-13 Auditing, Monitoring and Inspections; Record Keeping

13.1. Preservation of records. Every self-insured employer shall keep, preserve and maintain complete records showing in detail all expenditures for payroll and the separation of such expenditures in the various classifications of the employer's business. The employer shall keep such additional information necessary to determine classification of the employer’s activities as well as other information necessary for a risk assessment. Records shall be preserved for not less than ten (10) years after the respective times of the transaction upon which the records are based. The employer shall retain all records for periods in excess of ten (10) years in matters involving possible fraud or failure to report or disputes with the Commissioner until the Commissioner or appropriate administrative, judicial or appellate body finally resolves the matter and the time for appeal has been exhausted.

13.2. Pursuant to W. Va. Code §23-2-2(a), each self-insured employer shall furnish to the Commissioner, upon request, all information required to determine risk assessment, the amount of surcharges and assessments owed, or to carry out any other duties under chapter twenty-three of the West Virginia Code and the rules promulgated thereunder. This information may include, but is not limited to, the number of employees employed by the employer during a pertinent period and the names, social security numbers, payroll during relevant periods, occupations and classification information of the self-insured employer’s employees,.

13.3. Preservation of claims records. Every self-insured employer is required to keep, preserve and maintain all records relevant to workers’ compensation claims.

13.4. Inspections of records; failure to maintain records.

a. The self-insured employer shall keep available for inspection at any reasonable time by the duly authorized representatives of the Commissioner:

1. All accounting records, books, records, papers and documents, whether in hard copy or electronic form, reflecting the amount and the classifications of the payroll expenditures of an employer, as well as the nature of the business operation; and 2. All records relevant to workers’ compensation claims, whether in hard copy or electronic from.

b. The Commissioner shall review claims records of the employer on an annual basis or more frequently as the Commissioner determines in his or her sole discretion to be necessary.

c. If any employer fails to keep, preserve and maintain the records and other information required by this section, or fails to make such records and information available for inspection, the Commissioner may revoke the employer’s self-insurance status or, in the Commissioner’s discretion, impose other penalties on the self-insured employer described in this section.

13.5. Auditing records; adjustments. The Commissioner may at any reasonable time, audit any or all books, records, papers, documents, operations and payroll of an employer for the purpose of verifying the correctness of reports made by an employer or such other reports as may be required by the Commissioner or by State or federal law. The Commissioner may make adjustments, including adjustments to the amount of payroll expenditures, surcharge rates and assessment rates.

13.6. In order to inspect, audit or review information specified in this rule including, but not limited to payroll and claims records, the Commissioner may direct that an agent or employee of the Commissioner audit the information referred to in this section during the regular business hours of the employer or at another reasonable time and place within the State of West Virginia. The employer shall permit the audit to occur and shall cooperate with the auditors so that the audit may be successfully completed. Failure to cooperate with an inspection or audit may result in revocation of the employer’s self-insurance status or, in the Commissioner’s discretion, impose penalties on the self-insured employer.

13.7. Either as an addition to or as part of the audit permitted under this rule, the Commissioner may convene an administrative hearing or conduct a deposition for the purpose of receiving the information in testimonial or evidentiary form. The Commissioner, his or her designee, an inspector or a designated hearing officer may issue subpoenas and compel the attendance of witnesses and the production of pertinent books, accounting records, accounts, papers, records, documents, and testimony at any such hearing or deposition. Any administrative hearing or deposition shall be convened and conducted in accordance with 85 CSR 7, “Rules for Selected Hearings,” and the Commissioner may have any employer or officer, agent, or employee of any employer examined under oath or affirmation. A deposition may be held pursuant to this subsection even if a hearing regarding the employer has not been previously noticed or requested; provided that adequate notice of the deposition is given to all interested parties known to the Commissioner.

13.8. The request for information provided for by chapter twenty-three of the West Virginia Code or rules promulgated thereunder, the audit provided for by this rule, or the hearing provided for by this rule may be conducted at any time when necessary to carry out the purposes of chapter twenty-three of the West Virginia Code or the rules promulgated thereunder.

13.9. Noncompliance Penalties. Penalties may be assessed against self-insured employers who fail to comply with any provisions of chapter twenty-three of the West Virginia Code or rules promulgated thereunder with regard to their self-insured status, including, but not limited to, failing to timely administer claims, failing to timely pay benefits, failing to properly, timely and accurately report requested information and failing to remit surcharges and assessments as required. The penalty amount will be based upon the employer’s overall compliance as determined by the Commissioner’s review of the employer’s records and conduct.

a. The penalty assessed under this subsection is in the sole discretion of the Commissioner, not to exceed $500 per occurrence of non-compliance.

b. The assessment and payment of penalties under this section shall not prevent the Commissioner from making recommendations to the Industrial Council concerning the employer’s self-insurance status.

c. In addition to penalties as described in this section, if the Commissioner, in his or her sole discretion, believes that it would be effective, the Commissioner may place a self-insured employer on a corrective action plan to remediate non-compliance issues. The corrective action plan shall be established with standards, time frames and other parameters as deemed appropriate by the Commissioner. Failure by a self-insured employer to comply with a corrective action plan may result in the imposition of additional penalties, including monetary penalties or revocation of self-insured status.

W. Va. Code R. § 85-18-14 Maintaining Self-Insured Status; Annual Review

14.1. The employer's status as a self-insured employer shall continue on a year-to-year basis so long as the employer continues to maintain the requisite financial standing and continues to satisfy the other requirements imposed by chapter twenty-three of the West Virginia Code and the rules promulgated thereunder, and any order of the Commissioner.

14.2. Annual review. The Commissioner will perform a comprehensive claims, financial, compliance and security review of each self-insured employer on an annual basis. The Commissioner may conduct an audit of all claims records, accounting records, books, records, papers, operations and documents deemed relevant by the Commissioner in the possession or control of the employer.

a. The Commissioner shall notify each self-insured employer of their annual review.

b. Upon notice of the Commissioner, each self-insurer shall file or make available for inspection, by whichever method specified by the Commissioner, all documents and information requested to perform an annual review on the self-insured employer. If any employer fails to make such records and information available for inspection, the Commissioner may recommend to the Industrial Council that the employer’s self-insurance status be revoked or, in the Commissioner’s discretion, impose penalties on the self-insured employer.

c. The Commissioner shall notify the employer of the results of the annual review or interim reviews if such reviews reflect a deteriorating financial condition.

14.3. Financial review. In the performance of its annual financial and security review, the Commissioner shall determine whether the self-insured employer continues to demonstrate sufficient financial capability to remain self-insured. All the following benchmarks must be met in order to demonstrate a financial position that is not deteriorating.

a. The most recent three years of audited financial statements must be analyzed through the most current Commissioner financial review model.

1. A score of medium to high must be met in the financial strength category.

2. A company cannot post net operating losses more than two years in a row.

3. The current ratio may not decline two years in a row and be at least one to one or may not decline 40% from one financial review to the next.

4. The total liabilities to total assets may not increase two years in a row or increase over 40% from one financial review to the next.

5. The auditor’s opinion on the financial statements for the most recent fiscal year must not contain any comments indicating a deteriorating financial condition and/or express a going concern qualification.

b. In addition to meeting all of the preceding benchmarks, one of the following three benchmarks must be met to demonstrate a financial condition that is not deteriorating:

1. Cash flow from operating activities is greater than net income.

2. Total stockholders’ equity has not declined two years in a row or over 40% from one financial review to the next.

3. An employer has at least three (3) of the six (6) profitability and solvency ratios fall within the industry median as reported by Dun & Bradstreet or other company specified by the Commissioner. The six ratios are:

A. Profit margin;

B. Rate of return on assets;

C. Return on net worth;

D. Current ratio;

E. Current liabilities to net worth; and F. Total liabilities to net worth.

c. In addition to the annual review, the Commissioner reserves the right to take action against a self-insured employer based upon any information obtained by the Commissioner between annual reviews which reflects that the self-insured employer’s company is in a deteriorating financial condition. The self-insured employer shall be notified of any such reviews or ensuing action.

14.4. The Commissioner reserves the right to review or audit, at any time, a self-insured employer’s compliance with the requirements of chapter twenty-three of the West Virginia Code and the rules promulgated thereunder, and to otherwise ensure that, with regard to claims handling practices, the self-insured employer is not operating in an illegal, improper or unjust manner. The Commissioner may assess penalties pursuant to subsection 13.9. of this rule for all instances of non-compliance.

14.5. Security Responsibility. The self-insured employer is responsible for maintaining adequate security for its claims liability for:

a. Catastrophic occurrences, if required by the Commissioner;

b. Claims with dates of injury prior to July 1, 2004; and c. In instances of a deteriorating financial condition, whether discovered during annual review or during an interim period, claims liability for dates of injury on or after July 1, 2004, as provided by this and other rules of the Commissioner.

14.6. Claims Responsibility. A self-insured employer with respect to all or part of the compensation fund is responsible for:

a. The direct payment of all pecuniary compensation due and owing under chapter twenty-three of the West Virginia Code and the rules promulgated thereunder to employees or employees' dependents;

b. The direct payment of health care provider and medical invoices; and c. Reimbursing the Commissioner for any payments made by the Commissioner that should have been paid by the self-insured employer.

14.7. The self-insured employer shall pay pecuniary compensation payable by the employer and reimbursements due from the employer within the time periods specified by chapter twenty-three of the West Virginia Code and the rules promulgated thereunder and the orders of all adjudicatory bodies; or, in the absence of any of the above, employer shall pay the compensation and reimbursements in a prompt and timely fashion.

14.8. If the Commissioner determines that the security requires adjustment in light of the self-insured employer's current financial status or liability, the Commissioner shall recommend to the Industrial Council that the security requirements be adjusted. Prior to such action, the Commissioner shall notify the employer of the forthcoming recommendation to the Industrial Council and the reasons for the recommendation. The employer shall be provided thirty (30) days for written response to the Commissioner. The Commissioner shall provide a copy of any such employer response to the Industrial Council if the Commissioner recommends that the employer’s security be adjusted.

14.9. The Commissioner shall report to the Industrial Council any acts of non-compliance by a self-insured employer which the Commissioner deems to be a major violation in nature and/or poses a significant threat to the self-insured community and its workforce. The Industrial Council may direct the Commissioner to terminate an employer's self-insurance status if the Council believes that the self-insured employer has shown an inability to carry out the responsibilities of being in self-insured status and that no other lesser penalties or corrective action plans would be effective. The Commissioner shall provide the employer with written notice of the termination.

W. Va. Code R. § 85-18-15 Involuntary revocation of self-insurance status

15.1. Notification.

a. Prior to recommending to the Industrial Council that the self-insured employer’s status of self-insurance be revoked, the Commissioner shall:

1. Notify the self-insured employer regarding the forthcoming recommendation;

2. Provide to the employer the reasons for recommending revocation of self-insured status;

3. Provide to the employer fifteen (15) days for written response to the Commissioner’s reasons for recommending revocation of self-insurance status;

4. Inform the self-insured employer that failure to respond in writing to the notification will result in the Commissioner’s recommendation to the Industrial Council that the employer’s self-insured status be revoked; and 5. Provide the notification to the self-insured in writing and by certified United States mail, return receipt requested.

15.2. Presentation before the Industrial Council.

a. After the Commissioner’s review of the response from the self-insured employer or the expiration of the time for response, the Commissioner may recommend to the Industrial Council that the employer’s status of self-insurance be revoked.

b. If the Commissioner recommends that the employer’s self-insured status be revoked, he or she shall provide a copy of the employer’s response to the Industrial Council.

c. The Commissioner shall make its recommendation to the Industrial Council at a meeting of the Council. The recommendation may be provided to the Council during an executive session of a meeting.

d. The employer shall be notified of the date, time and location of the meeting of the Industrial Council wherein the Commissioner will make his or her recommendation. The employer may be present during the presentation of the Commissioner’s recommendation. The employer may address the Council regarding the recommendation and for such time as may be appropriate in the discretion of the chair.

15.3. Approval of the Industrial Council.

a. After the Commissioner presents his or her recommendation to the Industrial Council, the Council shall determine whether to approve the Commissioner’s recommendation.

b. All decisions of the Industrial Council regarding the Commissioner’s recommendation shall be made in an open meeting of the board.

15.4. Revocation.

a. If the Industrial Council approves the Commissioner’s recommendations to revoke the employer’s self-insurance status, the Commissioner shall, by its order, notify the employer of the revocation of its self-insured status and the reasons for the revocation.

b. Upon revocation of the privilege of self-insurance, the employer shall remain liable for all accrued and contingent liabilities resulting from injuries or diseases incurred by its employees during the period of self-insurance and prior to the termination of self-insured status.

c. In the event that an employer’s self-insured status is revoked, the Commissioner may, in his or her sole discretion, order the employer to pay into the Self-Insured Employer Guaranty Risk Pool and Self-Insured Employer Security Risk Pool (if applicable) an amount sufficient to cover the estimated cost of all of the self-insured employer’s accrued and contingent liabilities resulting from the period of self-insured status, or, in the alternative and in the Commissioner’s sole discretion, secure the liabilities in a manner consistent with other provisions of this rule.

W. Va. Code R. § 85-18-16 Name and Address of Employer; Legal Notice; Publications; Employer Correspondence

16.1. General. Self-insured employers are required to provide the Commissioner with the name, telephone number, fax number and e-mail address of its designated primary contact person responsible for workers’ compensation matters. Except as hereinafter provided, the name and address given by the employer on the application for coverage shall be used by the Commissioner for giving any notice required by the statute or by this rule, unless a formal request for a change of name or address is made by the employer as hereinafter provided.

16.2. Change of name or address. Any self-insured employer changing the name or the address of its business must promptly notify the Commissioner, in writing, and request that the name or address be changed on the Commissioner's records. Every employer required to register with the Office of the Secretary of State shall provide evidence of any name change from that office.

a. In case of the appointment of a receivership, the full name of the receivership shall be reported.

b. If the employer wishes to have certain notices and correspondence directed to a subsidiary, a branch office or agent, the employer must notify the Commissioner in writing of the name and address of said subsidiary, branch office or representative and specify the circumstances under which said notice is to be given. The representative shall notify the Commissioner when such representation ceases and provide a current address to which the employer's notices and correspondence are to be sent.

16.3. Effect of failure to request change of name or address. In the absence of a request for a change of name or address by the employer, any notice given by the Commissioner to the employer at the address and in the name shown on the Commissioner 's records shall constitute constructive notice to the employer of any action taken.

16.4. Legal notice to attorney or agent. In any matter arising under this rule in which the Commissioner is required to give notice to a party, if a party is represented by an attorney or other representative, notice to the attorney or other representative is sufficient notice to the party so represented. “Other representative” includes the employer’s third party representative, if the employer is so represented.

16.5. Correspondence. All correspondence to the Commissioner from an employer or its representative related to an employer’s workers’ compensation account, premiums, or coverage issues shall contain the employer’s policy number and the employer’s federal employer identification number.

W. Va. Code R. § 85-18-17 Third Party Administrators

Self-insured employers may hire third party administrators to administer claims if the third party administrator is licensed to perform workers’ compensation claims services for the self-insured employer, consistent with the provisions of W. Va. Code §23-2C-17(c). Additionally, any third-party administrator performing services for self-insured employers shall comply with relevant provisions of chapters twenty-three and thirty-three of the West Virginia Code and the rules promulgated thereunder.

W. Va. Code R. § 85-18-18 Administrative Protests and Hearings

Any self-insured employer who wishes to contest a decision made by the Commissioner, under the provisions of chapter twenty-three, article two of the West Virginia Code, may do so under the provisions of W. Va. Code, §23-2-17 and 85 CSR 7, “Rules for Selected Hearings.”

85CSR18

85CSR18

Series 19 Self Insurance Risk Pools

W. Va. Code R. § 85-19-1 General

1.1. Scope. -- This exempt legislative rule provides for the creation of risk pools for the benefit of self-insured employers to secure the payment of obligations of self-insured employers.

1.2. Authority. -- W. Va. Code §§23-2-9(e), 23-2C-2(p), 23-2C-2(q), 23-2C-22, 33-2-10(b), and 33-2-21(a). Pursuant to W. Va. Code §23-2C-5(c)(2), workers’ compensation rules proposed by the Commissioner and approved by the Industrial Council are not subject to legislative approval as would otherwise be required under W. Va. Code §§29A-3-9 through 29A-3-16, inclusive. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- October 22, 2008.

1.4. Effective Date. -- November 21, 2008.

W. Va. Code R. § 85-19-2 Purpose of Rule

This rule provides for the continued maintenance and funding of two risk pools to secure the obligations of self-insured employers.

W. Va. Code R. § 85-19-3 Definitions

As used in this rule, the following terms, words, and phrases have the meanings stated unless in any instance where such term, word, or phrase is employed and the context expressly indicates that another meaning is intended.

3.1. “Default” means the failure by a self-insured employer to make a payment (including but not limited to payment of a claim, regulatory surcharge, debt reduction assessment or guaranty pool assessment), maintain required surety pursuant to the provisions of W. Va. Code St. R. §85-18-1 et seq. and this rule, or file a report due by it under the provisions of chapter twenty-three of the West Virginia Code or the rules promulgated thereunder within the time period specified by a notice regarding such failure.

3.2. “Employee” has the meaning ascribed to that term by W. Va. Code §§23-2-1 and 23-2-1a.

3.3. “Employer” has the meaning ascribed to that term by W. Va. Code §23-2-1, which includes, but is not limited to, any individual, sole proprietor, firm, partnership, limited partnership, limited liability company, joint venture, association, corporation, company, organization, receiver, estate, trust, guardian, executor, administrator, government entity or any other entity regularly employing another person or persons for the purpose of carrying on any form of industry, service or business in this state.

3.4. “Guaranty Pool”, as the term is used in this rule means the Self-insured employer guaranty risk pool as established by W. Va. Code §§23-2-9(e) and 23-2C-2(p).

3.5. “Industrial Council” means the Industrial Council created within the office of the Insurance Commissioner pursuant to W. Va. Code §23-2C-5.

3.6. “Commissioner” means the Insurance Commissioner of West Virginia.

3.7. “Security Pool”, as the term is used in this rule means the Self-insured employer security risk pool as established by W. Va. Code §§23-2-9(e) and 23-2C-2(q).

3.8. “Self-insurer” and “self-insured employer” mean employers who have been granted self-insured status under the provisions of W. Va. Code §23-2-9.

3.9. “Insured Employer” means an employer who obtains coverage under any of the workers’ compensation insurance plans offered by an insurer licensed by the Commissioner to provide such coverage in this State.

W. Va. Code R. § 85-19-4 Self Insurance Pools; Establishment; Application of Funds

4.1. The Commissioner shall maintain the Self-insured Employer Security Pool established pursuant to W. Va. Code §§23-2-9(e) and 23-2C-2(q) to make payments for bankrupt and default self-insured employers for claims with dates of injury prior to July 1, 2004.

a. The Commissioner shall segregate all contributions to the Security Pool, including all investment income earned from Security Pool proceeds.

b. The Commissioner shall not expend proceeds from the Security Pool corpus or its earnings for any other purposes than for obligations of the security pool.

4.2. The Commissioner shall maintain the Self-insured Employer Guaranty Pool established pursuant to W. Va. Code §§23-2-9(e) and 23-2C-2(p) to make payments for bankrupt and default self-insured employers for claims with dates of injury on or after July 1, 2004.

a. The Commissioner shall segregate all contributions to the Guaranty Pool, including all investment income earned from Guaranty Pool proceeds.

b. The Commissioner shall not expend proceeds from the Guaranty Pool corpus or its earnings for any other purposes than for obligations of the Guaranty Pool.

W. Va. Code R. § 85-19-5 Participation

5.1. All self-insured employers, whether active or inactive, which have any claims arising during the period of self-insurance and which are open or subject to being re-opened shall participate in the Security Pool.

5.2. All active self-insured employers shall participate in the Guaranty Pool. Active self-insured employers that become inactive on or after July 1, 2004, shall be required to participate in the Guaranty Pool under the provisions of section 10. of this rule.

5.3. Former self-insured employers who have voluntarily bought out their liability prior to December 31, 2005, or have entered into an agreement for an involuntary buy out are not required to participate in either the security or guaranty pools.

W. Va. Code R. § 85-19-6 Surety Requirements

6.1. All employers who participate in the Security Pool are required to fully secure their claims liabilities for all claims with dates of injury prior to July 1, 2004.

a. All employers who are fully secured for their claims liabilities as of the effective date of this rule shall maintain and increase their security as necessary to remain fully secured for their claims liabilities.

b. The failure by an employer to fully secure and maintain security on their claims liabilities in accordance with this rule may result in revocation of self-insurance status pursuant to the provisions of W. Va. Code St. R. §85-18-1 et seq. An employer who receives a notification of a recommendation by the Commissioner of revocation of self-insured status for failure to fully secure or maintain security on their claims liability may file a petition with the Industrial Council to be granted a six (6) month grace period to obtain security.

1. The employer shall file its petition for grace period with the Commissioner who will distribute the petition to the Industrial Council.

2. The Industrial Council shall consider the petition for grace period at such time as is convenient to the Industrial Council. The Industrial Council shall consider the petition in an executive session. The Industrial Council may consider the written petition only or request the employer, the Commissioner or both to make an oral presentation. The Industrial Council shall make any decision regarding the petition for grace period in an open meeting.

3. The Industrial Council shall only grant a petition for grace period upon a unanimous vote of the Industrial Council.

4. An employer may only be granted one grace period.

6.2. The Commissioner shall perform an annual surety review based upon the Commissioner’s actuarial calculations to determine the required surety level for periods prior to July 1, 2004. Existing surety using old bond language will be credited to the employer at the estimated actual value of the bond as determined by the Commissioner.

6.3. Self insured employers shall not be required to provide surety, other than through Guaranty Pool assessments, for liabilities attributable to claims with dates of injury or last exposure on or after July 1, 2004. The Commissioner may require additional surety for claims with dates of injury on or after July 1, 2004, if it is determined that an employer’s financial condition has deteriorated compared to the previous year’s financial analysis by the Commissioner. The employer’s financial condition will be analyzed using objective benchmarks to determine a deteriorating financial condition as provided in W. Va. Code St. R. §85-18-1 et seq.

W. Va. Code R. § 85-19-7 Security Pool Funding

7.1. The Security Pool shall be funded by the following sources:

a. Proceeds received from the draw-down on surety documents in the event of a self-insured employer’s default;

b. All graduated premium tax payments made by participating self-insured employers for periods through the quarter ending June 30, 2004;

c. Assessments to fund the Security Pool pursuant to W. Va. Code §23-2-9(e); and d. Proceeds received from any alternative funds identified and made available through legislative enactment.

7.2. Should the proceeds identified in subsection 7.1. of this section be inadequate to fully satisfy the obligations of the Security Pool, the Commissioner and the Industrial Council shall identify and pursue such alternative funding as shall be deemed necessary.

W. Va. Code R. § 85-19-8 Security Pool Assessments Pursuant to W. Va. Code §23-2-9(e)

Beginning January 1, 2006, Security Pool assessments to self-insured employers shall be made as follows:

8.1. The Commissioner shall determine the projected claims payments to be made in the fiscal year.

8.2. The Commissioner shall determine the amount necessary to fund the Security Pool through assessments.

8.3. The Commissioner shall determine the methodology employed to allocate to each self-insured employer, based upon the self-insured employer’s claims reserves and financial strength, a fair and equitable portion of the projected claims payments.

8.4. In accordance with the methodology employed, the Commissioner shall determine the amount of each Security Pool assessment.

8.5. Notification. The Commissioner shall notify every employer who is assessed under this provision the amount of the assessment and the methodology employed to determine the assessment. The Commissioner shall provide notice to each affected employer at least sixty (60) days prior to the period for which the assessment is applicable.

8.6. Payments required under this provision shall be pro-rated and made on a quarterly basis.

W. Va. Code R. § 85-19-9 Guaranty Pool Funding

9.1. Beginning July 1, 2006, and in order to fund the Guaranty Pool, the Commissioner shall, except with respect to those self-insured employers and former self-insured employers required to make payments in accordance with subdivision b. of this subsection and section 10. of this rule, respectively, assess self-insured employers, as follows:

a. The annual assessment shall be equal to two percent (2%) of the self-insured employer’s preceding fiscal year’s annual claims indemnity payments [excluding payments to settle claims on a full and final basis] or a minimum of five thousand dollars ($5,000), whichever is greater. For example, a self-insured employer has paid one million dollars ($1,000,000.00) in indemnity payments in the preceding fiscal year. Of the one million dollars ($1,000,000.00), two hundred thousand dollars ($200,000.00) has been paid to settle claims on a full and final basis. The self-insured employer would be assessed two percent (2%) of eight hundred thousand dollars ($800,000.00), which yields sixteen thousand dollars ($16,000.00) as an assessment to the self-insured employer; and b. Any employer who becomes self-insured on or after July 1, 2004, will be assessed an amount equal to five percent (5%) of the preceding year’s premium, or a minimum of five thousand dollars ($5,000), whichever is greater, for a period of 3 years, beginning with the quarter in which self-insured status was made effective and regardless of whether such employer becomes an insured employer within such 3-year period: Thereafter, assessments shall be made in accordance with the same methodology utilized for other self-insured employers, as set forth in subdivision a. of this subsection. An employer’s liability for the assessments imposed pursuant to this subsection is not subject to suspension under subsection 9.2. of this section.

c. Payments made under this section and section 10. of this rule shall be pro-rated and made on a quarterly basis.

9.2. Whenever it is determined by the Commissioner that the Guaranty Pool contains more than the sum necessary to maintain the solvency of the Pool, the Commissioner shall suspend the obligation of self-insured employers to pay the assessment under subdivision a., subsection 9.1. of this section and of any former self-insured employer to pay the assessment under section 10. of this rule: Provided, That as of July 1, 2006, ten million dollars ($10,000,000) is deemed to be an adequate level of funding to maintain the solvency of the Guaranty Pool.

9.3. The Commissioner shall propose different assessment methodologies and/or a different level of minimum funding of the Pool whenever he or she determines that such a change or changes are necessary to maintain the solvency of the Pool: Provided, That any changes to the assessment methodologies, as prescribed in subdivision a. and/or b., subsection 9.1. of this section, or to the level of funding deemed necessary to maintain solvency of the Pool, as prescribed in subsection 9.2. of this section, shall be made by amendment to this rule.

W. Va. Code R. § 85-19-10 Converting to Insured Employer Status or Becoming Inactive

On or after July 1, 2004, any active self-insured employer who: (i) becomes an insured employer or who, either voluntarily or involuntarily, has its self-insured status terminated; and (ii) did not enter into a voluntary buy out for its liability prior to December 31, 2005, or enter into an agreement for an involuntary buy out, shall maintain surety in an amount sufficient to cover its liabilities during its period of self-insurance consistent with this rule and W. Va. Code St. R. §85-18-1 et seq.; any such employer shall also be assessed Security Pool and Guaranty Pool assessments for a period of ten (10) years from the termination of self-insured status: Provided, That in these circumstances, Guaranty Pool assessments for each year shall be in the amount of five percent (5%) of the prior year’s indemnity payments or five thousand dollars ($5,000.00), whichever is greater; Provided, further, That such assessments are subject to suspension as provided in subsection 9.2. of this rule. This provision is not to be construed as excusing any obligation of a terminated self-insured employer imposed by chapter twenty-three of the West Virginia Code or the rules promulgated thereunder.

85CSR19

85CSR19

Series 20 Medical Management Of Claims, Guidelines For Impairment Evaluations, Evidence, And Ratings, And Ranges Of Permanent Partial Disability Awards

W. Va. Code R. § 85-20-1 General

1.1. Scope. -- W. Va. Code §23-4-3b(b) requires the Workers’ Compensation Board of Managers to promulgate a rule establishing the process for the medical management of claims and awards of disability which includes, but is not limited to, reasonable and standardized guidelines and parameters for appropriate treatment, expected period of time to reach maximum medical improvement and range of permanent partial disability awards for common injuries and diseases or, in the alternative, which incorporates by reference the medical and disability management guidelines, plan or program being utilized by the commission, insurance commissioner, self-insured employer or private carrier, whichever is applicable, for the medical and disability management of claims, with the requirements, standards, parameters and limitations of such guidelines, plan or program having the same force and effect as the rule promulgated in compliance herewith. This Rule satisfies this statutory requirement. See also, W. Va. Code §§23-1-1(b); 23-1-1a(j)(2), (3), (9), and 13); 23-1-1a(j)(13); 23-1-1b(g)(25); 23-1-13; 23-4-1(c), (d), (f), and (i); 23-4-1g; 23-4-3; 23-4-1d;23-4-3c; 23-4-6; 23-4-7; 23-4-7a; 23-4-8; 23-4-8b; 23-4-8c; and 23-4-16.

1.2. Authority. -- Pursuant to W. Va. Code, §23-1-1a(j)(3), rules adopted by the Workers Compensation Board of Managers are not subject to legislative approval as would otherwise be required under W. Va. Code, §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- December 20, 2005.

1.4. Effective Date. -- January 20, 2006.

1.5. Repeal of former rules. -- This exempt legislative rule repeals and replaces the following: 1) 85 C.S.R. 13, “ Protocols and Procedures for Performing Medical Evaluations in Noise-Induced Hearing Loss Claims,” filed in the Secretary of State’s Office January 24, 1996 and made effective February 22, 1996; 2) 85 C.S.R. 16, “Guidelines for Permanent Impairment Evaluations, Evidence, and Ratings,” filed in the Secretary of State’s Office January 24, 1996 and effective February 26, 1996; 3) 85 C.S.R. 20, “Guidelines for the Treatment of Workers’ Compensation Injuries” filed in the Secretary of State’s Office August 23, 1995 and effective October 1, 1995; 4) 85 C.S.R. 21, “Guidelines for Controlled Substances,” filed in the Secretary of State’s Office August 23, 1995 and made effective September 22, 1995; and 5) 85 C.S.R. 1, “Administration of the Workers’ Compensation Fund,” Sections 11, 14, and 20.

In accordance with the amendments to this rule, this exempt legislative rule repeals and replaces 85 CSR 22, “Guidelines for Psychiatric Permanent Impairment, Evaluations, Evidence and Ratings of Psychiatric Impairment Due to Workers’ Compensation Injuries.”

1.6. Effective Date of Original Filing. -- June 14, 2004.

W. Va. Code R. § 85-20-2 Purpose of Rule

2.1. The purpose of this rule is to implement the provisions of W. Va. Code §23-4-3b(b) and the other provisions of the Code that are identified in Section 1.1 above.

2.2. Upon termination of the Commission, regulatory enforcement of this exempt legislative rule shall transfer to the insurance commissioner to be administered in a manner otherwise consistent with chapter twenty-three of the West Virginia Code. W.Va. Code §23-2C-22.

W. Va. Code R. § 85-20-3 Definitions

As used in these rules, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

3.1. "Code of West Virginia" and "West Virginia Code" means the West Virginia Code of 1931 as amended.

3.2. "Executive Director" means the Executive Director of the West Virginia Workers' Compensation Commission as provided pursuant to the provisions of W. Va. Code §23-1-1b.

3.3. "Commission" means the West Virginia Workers’ Compensation Commission as provided for by W. Va. Code §23-1-1, et seq.

3.4. "Health Care Vendor" or "Health Care Provider" refers to health care providers, including providers of rehabilitation services within the meaning of W. Va. Code §23-4-9, both in- and out-of-state who have signed provider agreements with the West Virginia Workers' Compensation Commission, insurance commissioner, self-insured employer or private carrier, whichever is applicable, to provide health care for injuries or illnesses covered by Chapter 23 of the Code. For this Rule, the terms shall mean any person, firm, corporation, partnership, association, agency, institution, or other legal entity providing any kind of services or equipment. The terms include, but are not limited to, hospitals, medical doctors, dentists, chiropractors, vocational rehabilitation counselors, vocational rehabilitation service providers, qualified rehabilitation professional, osteopathic physicians, pharmacists, podiatrists, physical therapists, occupational therapists, massage therapists, psychologists, naturopathic physicians, and durable medical equipment suppliers.

3.5. "Office of Judges" refers to the Office of Judges, as set forth in W. Va. Code §23-5-8.

3.6. "This rule" means the present exempt legislative rule that is designated in the caption here as title 85, series 20.

3.7. The following will be referred to throughout the rule by the abbreviation indicated.

a. Magnetic resonance imaging - MRI b. Encephalogram - EEG c. Computer Assisted Tomogram - CT scan d. Electromyelogram – EMG

3.8. “Guides Fourth” means the “Guides to the Evaluation of Permanent Impairment,” (4th ed. 1993), as published by the American Medical Association.

3.9. “Maximum medical improvement” means a condition that has become static or stabilized during a period of time sufficient to allow optimal recovery, and one that is unlikely to change in spite of further medical or surgical therapy.

3.10. “Permanent impairment” means a permanent alteration of an individual’s health status and is assessed by medical means and is a medical issue. An impairment is a deviation from normal in a body part or organ system and its functioning. An injured worker’s degree of permanent whole body medical impairment is to be determined in keeping with the determination of whole person permanent impairment as set forth in the applicable Guides. For the purposes of this Rule, the Guides’ use of the term “whole person” impairment is the equivalent of the term “whole body” impairment.

3.11. Chart Notes: This type of documentation may also be referred to as "office" or "progress" notes or “narrative report.” Providers must maintain charts and records in order to support and justify the services provided. "Chart" means a compendium of medical records on an individual patient. "Record" means dated reports supporting bills submitted to the department or self-insurer for medical services provided in an office, nursing facility, hospital, outpatient, emergency room, or other place of service. Records of service shall be entered in a chronological order by the practitioner who rendered the service. For reimbursement purposes, such records shall be legible, and shall include, but are not limited to:

a. Date(s) of service;

b. Patient's name and date of birth;

c. Claim number;

d. Name and title of the person performing the service;

e. Chief complaint or reason for each visit;

f. Pertinent medical history;

g. Review of medication h. Pertinent findings on examination;

i. Medications and/or equipment/supplies prescribed or provided;

j. Description of treatment (when applicable);

k. Recommendations for additional treatments, procedures, or consultations;

l. X rays, tests, and results; and m. Plan of treatment/care/outcome.

3.12. “Injured worker” means an individual seeking to received benefits available under Chapter 23 of the Code and/or has received and/or is receiving benefits under Chapter 23 of the Code.

3.13. “Insurance Commissioner” means the insurance commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code, or designated third-party administrator of the Insurance Commissioner.

3.14. “Private Carrier” means any insurer, including the successor to the Commission, authorized by the insurance commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code, but shall not include self-insured employers.

3.15. “Self-insurer” and “self-insured employer” mean employers who are eligible and have been granted self-insured status under the provisions of W. Va. Code §23-2-9.

W. Va. Code R. § 85-20-4 Adoption of Standards and Acceptance of Rules

4.1. The treatment guidelines, standards, protocols, and limitations thereon provided for the injuries and diseases listed in this section are designed to assist health care providers in the evaluation and treatment of injured workers. The provisions of this Rule are not intended to strictly dictate results and it is recognized that there may be extraordinary cases that require treatments in addition to the treatments set forth in this Rule. However the treatments and limitations on treatments set forth in this Rule are presumed to be medically reasonable and treatments in excess of those set forth in this rule are presumed to be medically unreasonable. A preponderance of evidence, including but not limited to, detailed and documented medical findings, peer reviewed medical studies, and the elimination of causes not directly related to a compensable injury or disease, must be presented to establish that treatments in excess of those provided for in this Rule are medically reasonable. To receive reimbursement from the Commission, insurance commissioner, self-insured employer or private carrier, whichever is applicable, for treatment in excess of that provided for in this Rule, all providers must thoroughly document and explain the action taken and the basis for the deviation from this Rule and shall receive authorization before providing said treatment.

4.2. Except as provided for in section 5.11 of this Rule, providing treatment to an injured worker, filling prescriptions for an injured worker, and/or acceptance of payment for treatment, devices, or medications provided to an injured worker constitutes acceptance by the medical provider of the Commission’s or Insurance Commissioner’s rules and fee schedules.

4.3. Failure of the medical provider to timely submit appropriately completed forms, failure to comply with this Rule or any fee schedule or billing guideline, as may be from time to time amended, and any attempt to seek reimbursement in excess of the levels provided for in this Rule may be considered as an abusive practice for purposes of W. Va. Code §23-4-3c and may be considered as evidence of conduct in violation of W. Va. Code §61-3-24g. All medical reports and fee bills must be signed by the medical vendor rendering the services or his authorized representative. If the report or bill is not submitted electronically, the medical vendor’s name must be legibly printed or typed beneath the signature.

W. Va. Code R. § 85-20-5 Qualified Providers and Registration

5.1. To receive payment as a health care provider, a provider must be enrolled as an active vendor with the Commission. Providers may be reimbursed only for services actually provided or supervised and for which the vendor is duly licensed. To enroll, the provider must submit the applicable application to the Commission, completed in its entirety, along with all documentation requested by the Commission, including, but not limited to, all professional licenses, board certificates, business licenses, accreditation certificates, and/or operating permits held by the provider in this or any other state.

a. Upon termination of the Commission, no registration is required of health care providers. Health care professionals are required to verify and provide proof of their licensing and certification, including, but not limited to, all professional licenses, board certificates, business licenses, accreditation certificates, and/or operating permits held by the provider in this or any other state, to the Insurance Commissioner, self-insured employer or private carrier, whomever services are provided under this rule. In turn the Insurance Commissioner, self-insured employer or private carrier, is required to maintain this proof that the health care provider is qualified to provide services under this rule.

b. Providers must advise the Commission, the Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, if their license to practice medicine has ever been suspended or terminated by the appropriate authority in West Virginia or any other state and whether the provider has been convicted of any crime in relation to his or her practice, or any felony. Providers with address or telephone number changes must advise the Commission, the Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, in writing (by mail or facsimile), providing both old and new information and their tax identification number on letterhead.

5.2. Any provider who has had his or her license to practice medicine suspended or terminated by the appropriate authority in West Virginia or any other state, any provider who has been convicted of any crime in relation to his or her practice, or any felony, and/or any provider who has been suspended or terminated by the Commission or Insurance Commissioner, whichever is applicable, pursuant to W. Va. Code §23-4-3c, or any other provision, may be excluded by the Commission or Insurance Commissioner, whichever is applicable, in any managed care plan created by the Commission, the Insurance Commissioner, self-insured employer or private carrier, whichever are applicable,.

5.3. Providers must submit their usual and customary charges for commonly billed codes when applying for enrollment. If the provider is ultimately enrolled, the provider shall only be permitted to charge the provider’s usual and customary charges, and not the maximum amount allowed under the Commission’s, Insurance Commissioner’s, private carrier’s or self-insured employer’s, whichever is applicable, fee schedule.

5.4. Licensed practitioners are eligible to treat injured workers to the extent of the practitioner’s license certification. Providers not independently licensed must practice under direct supervision of a licensed health care professional whose scope of practice and specialty training includes service provided by the paraprofessional.

5.5. Reimbursement for care will only be authorized if the provider has provided documentation of credentialing consistent with the type of care provided.

5.6. Until the termination of the Commission, a new Application is required to be filed with the Commission if a provider’s name or tax identification number changes. The Application must have the original signature of an authorized person and may be faxed initially to the Commission’s Provider Registration unit. Activation is not official until a complete signed application has been received and a confirmation letter is sent at that time. The hard-copy original must be sent to:

Workers’ Compensation Commission ATTN: Provider Registration P.O. Box 4228 Charleston, WV 25364-4228 a. Upon termination of the Commission, the provider is required to keep current provider information on file with the Insurance Commissioner, self-insured employer or private carrier, whomever services are provided under this rule.

5.7. The provision of health care services to injured workers under the workers’ compensation system of this state constitutes an agreement to:

a. Accept the Commission’s, or Insurance Commissioner’s fee schedule, as amended from time to time by the Commission or Insurance Commissioner;

1. In instances when the commission, and effective upon termination of the commission, private carriers, self-insured employers or other payors, have entered into preferred provider or managed care agreements which provides for fees and other payments which deviate from the schedule of maximum disbursements set forth in accordance with the provisions of W. Va. Code §23-4-3(a), such acceptable level of payments may be set forth in the preferred provider or managed care agreement(s);

b. Submit reports and to make continuing reports in a timely manner and as otherwise required and on forms required by the Commission, the Insurance Commissioner, self-insured employer or private carrier, whichever are applicable, as from time to time amended;

c. Retain medical records, including, but not limited to, general medical records and X-Ray’s, for ten (10) years and invoices, electronic or paper, for three years;

d. Timely and fully participate in all physical and vocational rehabilitation efforts of the Commission, the Insurance Commissioner, self-insured employer or private carrier, whichever are applicable,;

e. Accept all provisions of this Rule, and all policies, procedures, and other requirements adopted from time to time by the Commission or Insurance Commissioner, whichever is applicable; and f. To remain updated and familiar with all medical billing instructions, and other rules, regulations, and procedures of the Commission, the Insurance Commissioner, self-insured employer or private carrier, whichever are applicable,.

5.8. Health Care Providers. Certain procedures performed by health care providers are reimbursable by the Commission, the Insurance Commissioner, self-insured employer or private carrier, whichever are applicable, only when providers have certification in accordance with W. Va. Code §30-16-20. Health care providers must provide evidence of certification if they wish to perform videofluroscopy, diagnostic ultrasound, electromyography, nerve conduction velocity studies, somatosensory testing, neuromuscular junction testing, and any other diagnostic testing identified by the Commission, the Insurance Commissioner, self-insured employer or private carrier, whichever is applicable,.

5.9. Independent Medical Examiners. Registered providers may apply to be recognized by the Commission as independent medical examiners, who provide independent examinations and recommend impairment ratings of injured workers. A separate application, Independent Medical Examiner Application, must be submitted and approved by the Commission. Approval shall only be granted if the applicant is board certified under a certification granted by the American Board of Medical Specialties (ABMS) or the Bureau of Osteopathic Specialists certifying boards of the American Osteopathic Association (AOA), where such board exists. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, reserves the right, in its sole discretion, to direct the examinee to the examiner of its choosing. All independent medical examiners shall comply with all Commission policies and procedures as a pre-requisite to payment.

a. Upon termination of the Commission, no registration is required of independent medical examiners. Independent medical examiners are required to verify and provide proof of their ABMS or AOA certification to the Insurance Commissioner, self-insured employer or private carrier, or to their third party administrator or managed care provider, whomever services are provided under this rule. In turn, the Insurance Commissioner, self-insured employer or private carrier, or their third party administrator or managed care provider, is required to maintain this proof of certification of the independent medical examiner.

5.10. Out-of-State Providers. If an injured worker elects or is directed to receive health care services from an out-of-state provider, and that provider does not accept the Commission’s insurance commissioner’s, private carrier’s or self-insured employer’s, whichever is applicable, fee as payment in full, then the injured worker may be liable for the difference between the payment and the amount charged by the out-of-state health care provider.

5.11. Given the above, it is essential that all physicians be aware of the injured worker’s potential liability when selecting a referral, consulting, surgical, or other provider located in another state. Accordingly, all referrals should be to providers registered with the Commission or within the network of physicians authorized to provide health care services to its injured workers by the Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and referrals to non-registered providers requires pre-authorization from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Unless the following exceptions apply, referral to an out-of-state provider will put the injured worker at risk for out-of-pocket payment for medical service.

a. Emergencies: Where there is an urgent need for immediate medical attention to prevent death or serious and permanent harm, the injured worker will not be personally liable for the difference between fee schedule and the amount charged by the out-of-state provider. The exception no longer applies when, after emergency admission, the injured worker attains a stable medical condition and can be transferred to either a West Virginia health care provider or an out-of-state health care provider who has agreed to accept the scheduled fee as payment in full. If the injured worker refuses to be transferred, then he or she will be personally liable for the difference in costs between the fee schedule amount and the amount charged by the provider for services after attaining medical stability.

b. No Nearby Qualified Provider: If no health care provider qualified to provide needed medical services and who has agreed to accept the Commission’s, Insurance Commissioner’s, private carrier’s or self-insured employer’s, whichever is applicable, fee schedule as payment in full is reasonably near to the injured worker’s home, the injured worker may request authorization for an out-of-state provider. If the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, authorizes medical services from the out-of-state provider, the injured worker will not be personally liable for the difference between fee schedule and the amount charged by the out-of-state provider.

W. Va. Code R. § 85-20-6 The Role of the Treating Physician

6.1. Each injured worker selects a treating physician of record who will treat the injured worker and be responsible for coordinating all subsequent health care. The treating physician of record may be a medical doctor, osteopath, podiatrist, or chiropractor. Any treating physician who is limited in number of treatments by another provision of this Rule shall, upon exhaustion of that limit, only seek reimbursement as a treating physician for services provided in intervals consistent with those of other treating physicians. The injured worker should not seek care from more than one provider without contacting the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, requesting the designation of a different attending physician, and having that request approved. Injured workers whose employer’s or the employer’s private carrier’s managed care plans have been approved by the Commission or Insurance Commissioner, whichever is applicable, or who are covered by a managed care plan adopted by the Commission shall chose a treating physician offered under the applicable plan.

6.2. Whenever possible, the treating physician should use the least costly mode of treatment. This generally will require that outpatient services be used in lieu of inpatient care and the avoidance of referring injured workers to hospital emergency rooms for care that can be rendered in the office. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will approve payment for initial use of emergency room facilities and services such as routine dressings, routine tests, routine medications and routine local anesthesia. Subsequent use of the emergency room for services will not be approved without a statement from the physician explaining the necessity for the services rendered. Routine visits to the emergency room shall not be approved or reimbursed by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

6.3. Treating physicians should request referral of an injured workers who continues to report pain and dysfunction while showing no significant measurable or objective signs of improvement for a Permanent Partial Disability evaluation. Such injured workers may also be discharged or referred to a different, appropriate specialty for evaluation and possible modification of treatment.

6.4. When the treating physician finds the injured worker to be at maximum medical improvement, the treating physician may provide an impairment rating pursuant to applicable Guidelines for the injured worker. If the rating exceeds fifteen percent (15%), the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may accept or reject the rating and may order an independent evaluation of the injured worker. The treating physician may also report a finding of Maximum Medical Improvement without making an impairment rating, reported on Form WC-219a, “Notice of Maximum Medical Improvement.”

6.5. The treating physician of record shall provide a treatment plan for the medical care being considered in narrative form as set forth in section 3.11 of this Rule.

6.6. It is the responsibility of the treating physician to notify the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, of the injured worker’s most accurate and current condition. The initial diagnosis reported when a claim is filed often requires updating based on diagnostic tests and clinical objective findings. Changes, additions and revisions of the injured worker’s condition must be reported using the applicable Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, form. All changes related to a diagnosis code shall submitted to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and must be approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable,, unless the new diagnosis is otherwise accepted by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, as being causally related to the compensable injury. Bills submitted for treatment that is clearly unrelated to the compensable diagnosis shall be denied and may serve as evidence of abuse under W. Va. Code §23-4-3c and/or fraud under W. Va. Code §61-3-24g. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may, in its sole discretion, recognize and identify the change, addition, or revision as a compensable condition.

6.7. Injured workers must request authorization from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to change the treating physician of record in their claim. This rule does not apply in the following cases:

a. Care transferred after initial emergency or first aid treatment if done so within 30 days of the date of injury;

b. Care transferred to a specialist by the original treating physician; or c. Care where an unforeseen emergency develops which requires special facilities and skills are not available to the treating physician or hospital.

6.8. Any change of treating physician that does not require authorization by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will require a detailed explanation to ensure that the change is documented on the claim file. Failure to do so may result in the delay of benefits and will result in the denial of payment for medical services.

6.9. When a change of physician is authorized, the previous treating physician must file a final report of the injured worker’s physical status on the effective date of change. The new treating physician of record must file an initial narrative report of his/her findings. It is the responsibility of every provider to make reasonable effort to ascertain whether there was a prior treating physician.

6.10. Except in cases where a consultant, anesthetist or surgical assistant is required, or the necessity for treatment by a specialist is clearly shown, fees not pre-authorized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not be approved for treatment by more than one medical vendor for the same condition over the same period of time.

W. Va. Code R. § 85-20-7 Initial Reporting of Injury

7.1. It is the responsibility of the injured worker to notify the employer, Commission, and medical provider when there is reason to believe the injury or condition is industrial in nature. Conversely, if the medical provider discovers a condition which he or she believes to be work related or has reason to believe an injury is work related, he or she must so notify the injured worker. Once such a determination is made by either the injured worker or the medical provider, the appropriate form(s) must be immediately submitted. Failure of the medical provider to timely submit the appropriately completed forms may be considered as an abusive practice for purposes of W. Va. Code §23-4-3c. Failure of the injured worker to timely submit appropriately completed forms may be considered and given appropriate weight by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in determining compensability or any other matter.

7.2. It is the medical provider’s responsibility to ascertain whether he or she is the first attending practitioner. If so, the medical provider will take the following action:

a. Give emergency treatment.

b. Immediately complete and forward the Initial Report of Injury to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and the employer.

c. Instruct and give assistance to the injured worker in completing his or her portion of the report of accident. The Initial report of Injury shall include a narrative report containing the following information so there is no delay in adjudication of the claim or payment of compensation:

1. Complete history of the industrial accident or exposure.

2. Comprehensive description of physical findings and prognosis.

3. Specific diagnosis with ICD-9-CM code(s) and narrative definition relating to the injury.

4. Type of treatment rendered.

5. Known medical, emotional or social conditions which may influence recovery or cause complications.

6. Estimated time loss due to the injury.

d. To the extent the information called for in (c)(1) – (c)(6) is not required on the Initial Report of Injury in use by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, the medical provider shall complete the appropriate form in its entirety and provide the additional information in the form of a narrative report.

W. Va. Code R. § 85-20-8 Additional Reporting Requirements

8.1. Whenever requested by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and at least every ninety (90) days in situations regarding the continuation of temporary total disability benefits, the medical provider shall report on the condition and treatment of the injured worker. The following information must be included in this type of report.

a. The condition(s) diagnosed including ICD-9-CM codes and the objective and subjective findings.

b. Their relationship, if any, to the industrial injury or exposure.

c. Outline of proposed treatment program, its length, components, and expected prognosis including an estimate of when treatment should be concluded and condition(s) stable. An estimated return to work date should be included. The probability, if any, of permanent partial disability resulting from industrial conditions should be noted.

d. If the worker has not returned to work, the attending doctor should indicate whether a vocational assessment will be necessary to evaluate the worker's ability to return to work and why.

e. If the worker has not returned to work, a doctor's estimate of physical and functional capacities should be included with the report. If further information regarding physical and functional capacities is needed or required, a performance-based functional capacity evaluation can be requested. Functional capacity evaluations shall be conducted by a licensed health care provider approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to perform this testing.

8.2. To the extent the information called for in Section 8.1 is not required on Attending Physician’s Report in use by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, the medical provider shall complete the Attending Physician’s Report in its entirety and provide any additional information set forth in Rule 8.1 in the form of a narrative report.

8.3. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may request, and the medical provider shall provide all chart notes relating to the evaluation and treatment of an injured worker.

8.4. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in its sole discretion, may require additional reporting on forms and in intervals as it deems necessary. Medical providers shall comply with the requests of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in this regard. Failure to make reports promptly may result in the delay of payments of benefits to the injured worker and denial of payment to the medical vendors for services rendered.

8.5. By application for benefits, an injured worker irrevocably waives patient-physician confidentiality and agrees that physicians and health care providers may release and discuss the injured worker’s medical history and medical reports pertaining to the compensable injury or disease to the injured worker’s employer, employer’s representative, or representatives of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, assuming such discussions are otherwise permissible under applicable law. Such discussion includes the injured worker’s condition, treatment, prognosis, anticipated period of disability and dates when the injured worker will reach maximum medical improvement or be released to return to work. Any prior injury or disease of the injured worker which impacts the alleged injury or treatment is covered by this agreement. The claimant’s agreement to the release of information from physicians and health care providers includes agreement to the release of information held by facilities where the treatment was provided. Such facilities include, but are not limited to hospitals, clinics, emergency care facilities, surgical centers, outpatient care facilities, diagnostic testing facilities and rehabilitation facilities. 8.6 In any claim where only medical benefits are being paid, the medical provider shall provide the report described in section 8.1 within thirty (30) days of being requested to do so by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

8.7. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall make referrals of claimants to physicians for independent medical examinations and evaluations as required by the West Virginia Code within twenty (20) days of the end of the one hundred twenty (120) period of temporary total disability, unless from the record the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, has a reasonable belief that the period of temporary total disability exceeds one hundred twenty (120) days.

W. Va. Code R. § 85-20-9 Coverage and Billing Provisions

9.1. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will pay for health care services, durable medical and other goods and other supplies and medically related items as may be reasonably required. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will only pay for those services or items that have a direct relationship to the work related injury or disease, as determined in the sole discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

9.2. A medical coverage decision is a general policy decision to be made in the sole discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to include or exclude a specific health care service or supply as a covered benefit. These decisions are made to insure quality of care and prompt treatment of workers. Medical coverage decisions include, but are not limited to, decisions on health care services and supplies rendered for the purpose of diagnosis, treatment or prognosis, such as:

a. Ancillary services including, but not limited to, home health care services ambulatory services, specific rehabilitative modalities;

b. Devices;

c. Diagnostic tests;

d. Drugs, biologics, and other therapeutic modalities;

e. Durable medical equipment;

f. Procedures;

g. Prognostic tests;

h. Supplies; and i. Inpatient hospital stays and associated charges

9.3. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, with some exceptions, will use these nationally-accepted standardized code sets for reporting medical conditions and treatment and may adopt successor code sets without amendment to this rule:

a. Common Procedure Terminology (CPT-4) codes (HCPCS Level I codes), for provider professional services b. Alpha-numeric codes (HCPCS Level II codes) for supplies, equipment and other medical services c. Local Codes (HCPCS Level III) for unique Workers’-Compensation-specific services (NOTE: Use of these non-standardized codes is limited as much as possible)

d. International Classification of Diseases, Ninth Revision, Clinical Modification (ICD-9-CM) for reporting diagnoses of work-related injuries and occupational illnesses e. Diagnostic related groups (DRG for in-patient hospital services)

f. Revenue codes for outpatient hospital based services g. National drug codes (NDC) for pharmaceuticals

9.4. CPT-4 Codes (HCPCS Level I).

The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will update its vendor bill processing system to accept many of the new codes that are implemented nationally on an annual basis. This coding system, which uses a five-digit numeric code and allows for a two-digit modifier, is used to report most professional services, including Evaluation and Management, surgical intervention, anesthesia services related to surgery, physical medicine and other professional services.

9.5. HCPCS Level II National Alpha-numeric Codes.

The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will accept many of the codes developed by CMS for reporting those medical services and supplies not addressed by the CPT-4 code set. This coding system uses a five-digit alpha-numeric code, which consist of one alphabetic character (a letter between and including A and V), followed by four digits. The codes all begin with a single letter and are followed by four-digits. HCPCS codes also use modifiers, either two digits or two letters.

9.6. HCPCS Level III Local Codes.

The Level III codes are assigned and maintained by individual carriers. Like the HCPCS II National Codes, these codes begin with a letter (W through Z) followed by four numeric digits. The most notable difference is that these codes are not common to all carriers. Since 1999, the Commission has been eliminating the use of Local Codes wherever possible; however, there are still some local codes utilized by the Commission for services not normally reported by Medicare carriers.

9.7. ICD-9-CM Diagnosis Codes.

The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall use the ICD-9-CM coding system to report injured worker conditions in work-related injuries and occupational illnesses. Standard coding conventions shall be followed in reporting diagnosis. Payment will be denied for diagnosis judged, in the sole discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to not be causally related to the compensable injury.

9.8. Written descriptions of procedures alone will not be accepted. Billing may be submitted on the CMS-1500 (formerly, HCFA 1500) and the CMS-1450 (formerly, UB-92), or the most current forms utilized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Pharmacy charges should be submitted using the on-line Point-of-Sale system, but can also be reported on the Universal Claim Form, or the most current form utilized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Certain non-standard services unique to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, require Service Invoice, Form WC-400, or the most current form(s) utilized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

9.9. Pre-authorization. Written authorization must be obtained from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in advance for the procedures and services listed below, except in emergencies or where the condition of the patient, in the opinion of the medical vendor, is likely to be endangered by delay. Failure to comply with this rule will result in disapproval of the medical vendor’s bill. The vendor shall not seek reimbursement from the injured worker if payment is denied under this provision. This rule does not apply in cases involving initial treatment.

9.10. The following services require prior review and authorization before services are rendered and reimbursement made:

a. Inpatient hospitalizations subsequent to the Date of Injury (emergency admissions are reviewed on a retrospective basis);

b. Transfers from one hospital to another hospital (emergencies do not require authorization);

c. Reconstructive and restorative surgeries;

d. All surgeries;

e. Purchase of TENS unit above the amount of $50.00;

f. Treatment/supplies used in excess of three (3) months for TENS units;

g. Psychiatric treatment (does not include the initial psychiatric consultation);

h. Physical Medicine treatment in excess of this Rule;

i. Outpatient pain management procedures (epidural steroids, facet injections, etc.);

j. Medication not normally used in injury treatment and medication not listed on the preferred drug list, if applicable;

k. Medication - Controlled Substance (in excess of this Rule);

l. Durable Medical Equipment in excess of $500.00;

m. Brainstem evoked audiometry;

n. Repeat diagnostic studies (Workers’ Compensation no longer requires approval for the initial MRI, CAT scan, Myelogram, EMG, and Nerve Conduction Studies);

o. Standard/analog hearing aids;

p. Programmable/digital hearing aids;

q. Replacement hearing aids;

r. Repair of hearing aids over the price of $250.00;

s. Hearing Aid batteries over the allowed quantity of 50 per 6 months;

t. Telephone amplification devices;

u. Hearing aid assistance products (V5299);

v. Non-emergency ambulance transportation;

w. Non-emergency air transportation;

x. All vision services and items associated with vision;

y. All physical and vocational rehabilitative services;

z. Retraining expenses;

aa. All oxygen equipment, supplies, and related services;

bb. All nursing, nursing home, and personal care services;

cc. Home or vehicle modifications;

dd. Work hardening;

ee. Work conditioning; and ff. Dental procedures.

9.11. Prior-authorization requests shall be made in writing or electronically to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, for approval.

9.12. Medical services not specified above do not require prior approval but will be reviewed retrospectively to determine medical necessity. Services provided on an emergency basis are also subject to retrospective review to validate that the service was truly an emergency, and to determine medical necessity and relationship to the compensable injury.

9.13. Disposable/Non-reusable Supplies.

The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will reimburse for supplies prescribed by the authorized physician for use by the injured worker in the home setting which are reasonably required, as determined in the sole discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Supplies include dressings, colostomy supplies, catheters, and other similar items. The injured worker’s related diagnosis must be stated on the prescription form.

9.14. Durable Medical Equipment Exceptions.

The following durable medical equipment require prior-authorization, although reimbursed at less than $500:

a. E0585 Nebulizer with compressor;

b. E0607 Home blood glucose monitor;

c. E0610 Pacemaker monitor;

d. E0730 TENS, name brand;

e. E0731 Garment for TENS/ neuro-muscular;

f. E0745 Neuromuscular stimulator, electronic shock unit; and g. E0935 Passive motion exercise device.

9.15. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall deny bills for services rendered in violation of these Rules. Injured workers may not be billed for services denied pursuant to this provision.

9.16. Bills must be itemized on department or self-insurer forms or other forms which have been approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Bills may also be transmitted electronically using Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, file format specifications. Providers using any of the electronic transfer options must follow Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, instructions for electronic billing.

9.17. Bills must specify the date and type of service, the appropriate procedure code, the condition treated, and the charges for each service.

9.18. Bills submitted to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, must be completed to include the following:

a. Injured worker's name and address;

b. Injured worker's claim number;

c. Date of injury;

d. Referring doctor's name;

e. Area of body treated, including ICD-9-CM code(s), identification of right or left, as appropriate;

f. Dates of service;

g. Place of service;

h. Type of service;

i. Appropriate code to report services provided (including CPT, DRG, NCD, revenue codes, etc.);

j. Description of service;

k. Charge;

l. Units of service;

m. Tooth number(s);

n. Total bill charge;

o. The name and address of the practitioner rendering the services and the provider account number assigned by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable;

p. Date of billing;

q. Submission of supporting documentation required by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

9.19. Responsibility for the completeness and accuracy of the description of goods and/or services and charges billed rests with the provider rendering the good or service, regardless of who actually completes the bill form.

9.20. Bills must be received within six (6) months of the date of service to be considered for payment. Injured workers cannot be billed for any invoice denied under this provision.

9.21. The following supporting documentation is required to have been received by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, before reimbursement for a service is made:

a. Laboratory and pathology reports;

b. X-ray findings;

c. Operative reports;

d. Office notes;

e. Consultation reports;

f. Special diagnostic study reports; and g. Special or closing exam reports.

9.22. Requirements for payment of fees.

Fees for examination or treatment are approved only when made by the health care provider duly licensed to make such examination or to render such treatment, and then only when the medical vendor actually sees and examines the patient and actually renders or directly supervises such treatment.

9.23. Additional services and accommodations not reasonably required for treatment of the compensable injury but requested by the injured worker shall be the responsibility of the injured worker.

9.24. Failure on the part of the health care provider or other person, firm or corporation to submit fee bills to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, for services rendered within the statutory period prohibits collection thereof from the injured employee, the employer, private carrier, self-insured employer, Insurance Commissioner or the Commission, whichever is applicable.

9.25. Payment for drugs or medicine. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may approve payment for drugs or medicines furnished to the injured worker as part of routine treatment rendered by the medical vendor. If unusual treatment is necessary, or if drugs or medicines are to be used by the injured worker at his home in the absence of the medical vendor, payment for a reasonable quantity of such drugs or medicines may be approved. Application for such payment must be accompanied by a statement of the medical vendor setting forth the necessity and purpose of the use of such drugs or medicines.

9.26. Use of appropriate codes to report services is required and up coding (reporting a higher level of service than can be substantiated or actually was performed) is prohibited. Reimbursement shall not be made for such billing and up coding may be considered evidence of abuse under W. Va. Code §23-4-3c and evidence of fraud under W. Va. Code §61-3-24g.

9.27. Prosthetics and Orthotics. Upon receipt of the attending medical vendor’s report, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may refer the injured worker to a medical vendor or a Rehabilitation Center for evaluation to determine the type of prosthesis most beneficial for the particular injured worker involved and whether the injured worker is in need of training in use of the prosthesis. Upon receipt of the medical recommendations, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall authorize the fitting of the recommended prosthesis. Payment shall not be approved until the prosthesis is determined to be serviceable and satisfactory. The requirement for prior approval for prosthesis shall not apply when the attending medical vendor utilizes the procedure of immediate amputation prosthetic application.

9.28. A durable medical equipment supplier is required to exercise due diligence to verify that equipment is in use, that supplies are needed, and that a valid request for supplies has been made. Due diligence requires, but is not limited to, a personal contact with the injured worker. Reimbursement shall be denied for failure to exercise this required due diligence and may be evidence of fraud or abuse under Chapters 23 and 61 of the West Virginia Code.

W. Va. Code R. § 85-20-10 Supplies

HCPCS code A4550 (Surgical Trays) is a status B code and is not reimbursable for office procedures. Codes with a status B are bundled services for which no separate payment may be made. Supply costs are included in the global fee allowance for surgical procedures performed in an office setting. Code 99070 continues to be a non-covered, bundled code.

W. Va. Code R. § 85-20-11 Vision Care

Ophthalmologists and optometrists may use CPT codes for reporting procedures and professional services. Reimbursement for vision care equipment such as spectacles, contact lenses, etc., should be requested using appropriate HCPCS Level II codes. Repair or replacement of vision care equipment damaged in an accident will not be approved for payment unless the injured worker suffers a compensable physical injury in the accident.

W. Va. Code R. § 85-20-12 Psychiatric compensability, treatment and impairment ratings. (Effective Date: January 20, 2006.)

12.1. Purpose. The purpose of this section is to develop guidelines for the determination of compensability, treatment, evaluation and permanent impairment rating of claimants for psychiatric disabilities arising from injuries sustained in the course of and resulting from employment. This rule is applicable to evidence submitted by any party to a claim and to evidence gathered by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

12.2. Definitions. As used in these rules, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

a. “Work injury-related psychiatric disorders” means those psychiatric disorders caused by or aggravated by a work injury or disease. Attached as Exhibit A is a list of psychiatric diagnoses which are, by definition, not significantly contributed to by a work-related injury, unless the disorder ends in the phrase “due to a general medical condition” where the general medical condition is caused by the work-related injury. In order to be regarded as work-related, symptoms of an injury-related psychiatric diagnosis must be manifest within 6 months of the injury or significant injury-related complication based on credible medical evidence.

b. “Causation legal standard” means a physical, chemical, or biologic factor contributed to the occurrence of a medically identifiable condition. A medical determination is required to confirm the feasibility of the contributing factor could result in the occurrence of the condition (AMA Guides 4th Ed., Glossary).

c. “Aggravation, legal standard” means a physical, chemical, biological or medical condition significantly contributing to the worsening of a condition in such a way that the degree of permanent impairment increased by more than 3%. (AMA Guides 4th Ed., Glossary). For the impact to merit allocation of permanent impairment, the ultimate increase of impairment at MMI must at least be 3%.

d. “Apportionment” means a distribution or allocation of causation among multiple factors that caused or significantly contributed to the injury or disease and existing impairment.

e. “Psychiatric impairment” means the loss of, loss of use of, or derangement of mental, emotional or brain functioning.

f. “Permanent psychiatric impairment” means impairment that has reached maximum medical improvement which is static or well stabilized with or without psychiatric treatment or that is not likely to remit despite psychiatric treatment of the impairing condition.

g. “Permanent partial psychiatric impairment” means impairment that is assigned a percentage of impairment rating from the W. Va. Workers’ Compensation Impairment Guidelines for Psychiatric Impairment (Exhibit B).

h. “Temporary total psychiatric impairment” means a psychiatric condition that in and of itself, or in combination with a physical condition, makes the claimant unable to function in the work setting, but for which the claimant has not reached maximum medical improvement.

i. “Maximum medical improvement, psychiatric (stabilized psychiatric condition)” means a condition or state that is well-stabilized and unlikely to change substantially in the next year, with or without medical treatment. Over time, there may be some change; however, further recovery or deterioration is not anticipated. Evaluators should recognize that many psychiatric disorders improve to a state of maximum medical improvement within nine months of the onset of reasonable management.

12.3. Evidentiary Requirements.

The evidentiary weight to be given to a report will be influenced by how well it demonstrates that the evaluation was conducted in accordance with the rule and three attached Exhibits (Exhibit A, Exhibit B, and Exhibit C). Exhibit A lists disorders and conditions not significantly contributed to by a work-related injury. Exhibit B is a guideline for providing impairment ratings. Exhibit C is a report outline for psychiatric independent medical evaluations. The evaluator must address and memorialize each bold face section found in Exhibit C.

12.4. Compensability. Services may be approved to treat psychiatric problems only if they are a direct result of a compensable injury. As a prerequisite to coverage, the treating physician of record must send the injured worker for a consultation with a psychiatrist who shall examine the injured worker to determine 1) if a psychiatric problem exists; 2) whether the problem is directly related to the compensable condition; and 3) if so, the specific facts, circumstances, and other authorities relied upon to determine the causal relationship. The psychiatrist shall provide this information, and all other information required in section 8.1 of this Rule in his or her report. Failure to provide this information shall result in the denial of the additional psychiatric diagnosis. Based on that report, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will make a determination, in its sole discretion, whether the psychiatric condition is a consequence that flows directly from the compensable injury.

a. A Diagnosis Update Form WC-214 must be attached to the treating physician’s report in order to request the psychiatric condition be added as an approved diagnosis.

12.5. Treatment guidelines. Treatment of mental conditions to injured workers is to be goal directed, time limited, intensive, and limited to conditions caused or aggravated by the industrial condition. Psychiatric services to workers are limited to those provided by psychiatrists and licensed psychologists, and according to department policy.

a. Initial evaluation, and subsequent treatment must be authorized by Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, staff. The report of initial evaluation, including test results, and treatment plan are to be sent to the injured worker's attending provider, as well as the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. A copy of sixty-day narrative reports to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, is also to be sent to the attending provider. In addition, the following are required: Testing results with scores, scales, and profiles; report of raw data sufficient to allow reassessment by a panel or independent medical examiner. Use of the current Diagnostic and Statistical Manual of the American Psychiatric Association axis format in the initial evaluation and sixty-day narrative reports, and explanation of the numerical scales are required.

b. Understanding that psychiatric conditions may arise as a consequence of injury, it is recognized that these conditions need to be treated. It is expected that with resolution of the injury, there will be resolution of the psychiatric injury. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, is not responsible for the on-going management of chronic or pre-existing psychiatric conditions which it does not view as directly related to the injury.

12.6. In circumstances when a psychiatric condition does not causally relate to the injury of an injured worker, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may authorize treatment solely in its discretion for a limited period of time to maximize the opportunity for recovery from the work related injury. In such cases, no psychiatric diagnosis need be added to the list of compensable conditions in order to obtain the treatment.

12.7. Psychological Evaluation Guidelines.

a. General principles. Professional standards for psychological examiners. Psychologists providing services for the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable shall adhere to all relevant standards for practice as set forth by the American Psychological Association (Ethical Principles, Standards for Providers of Psychological Services, and Specialty Guidelines).

b. Purpose. The purpose of the psychological assessment is to obtain a current view of the claimant’s emotional and cognitive functioning, interpersonal relationships and approach to tasks. Symptoms and behaviors must be sampled through interview techniques, checklists, and standardized psychological measurements. Long term personality traits and dysfunctions should be identified. Inferences should be made regarding motivation and dissimulation (faking). It is assumed that psychological assessments are comprehensive and not limited to the presentation of psychometric data. Even when part of an interdisciplinary team, the psychologist has responsibility for recommending additional evaluations and interventions by other health care professionals as deemed necessary.

c. Initial Evaluation. Clinical judgment should be used to delete inappropriate or unnecessary testing and add additional appropriate objective measures to adequately assess the intellectual, emotional, personality and functional status of the claimant.

1. Intelligence Assessment. During the initial evaluation a standardized intelligence test should be administered. Acceptable tests include the most recently standardized/normed versions of either the Wechsler Adult Intelligence Scale (WAIS) or the Stanford-Binet. An intelligence screening measure is not an acceptable alternative to completion of a full battery exam. Behavioral observations of an individual in a structured testing environment are an important component of the testing process and therefore such clinical observations should be provided. All subtest scores as well as the Verbal. Performance and Full-Scale IQ scores should be reported. If the claimant is completing a repeat IME, there should be a compelling reason present (e.g., head injury, brain disease, substance abuse and self-reported cognitive changes) to justify re-administration of an IQ test.

2. Achievement testing – Achievement testing, such as the Wide Range Achievement Test-Revised or the Peabody Individual Achievement Test, should be administered during the initial evaluation. Such tests are used to demonstrate that the claimant has the requisite reading skills to understand and reliably respond to objective measures of personality. They are also used to help determine whether the claimant might have a diagnosis of Learning Disability for rehabilitation purposes.

3. Personality assessment – The type of personality instrument(s) to be used depends on the claimant’s intellectual capabilities and reading or listening comprehensive abilities. If indicated based on interview, claimant history or previous testing that the examiner has reason to suspect the claimant cannot adequately comprehend the item content of the personality measure, the examiner will need to screen for reading comprehension using standardized measures such as the WIAT-reading comprehensive subtest or the Woodcock-Johnson (Revised) passage comprehensive subtest. IF the claimant does not have adequate reading comprehension abilities, the examiner will need to objectively assess listening comprehension abilities (e.g., WIAT Listening Comprehension Subtest) prior to administration of a taped version of any personality measure. Taped versions of personality tests are acceptable for claimants with visual acuity problems but should not be given if listening comprehension is below acceptable levels for the selected personality measure. Reading/listening comprehension measures completed should provide a grade-equivalent reading/listening level that can be compared to reading requirements of the personality measure selected.

The personality measure selected should be normed on a psychiatric sample and not reflect “personality traits” of a normal population. At a minimum, personality assessment should include tests that address not only acute and chronic symptoms of emotional disorders but also long-standing personality characteristics. Personality assessment should utilize instruments with empirical/objective based scoring systems and appropriate norms. A summary of subscale scores when available should be included (e.g., MMPI-II profile sheet or a Welsh Code) in the report. Ideally, a measure of dissimulation should be incorporated into the specific test administered to address the validity of results (e.g., MMPI-II, Personality Assessment Inventory).

4. Supplementary testing. If indicated, additional measures can be administered. These measures should demonstrate adequate psychometric norms and may address:

A. Neuropsychological screen. Screening for the presence or absence of organic dysfunction in a claimant should address attention and concentration, memory, judgment, language skills and visual/spatial abilities.

B. Dissimulation C. Somatization D. Mood disorders/suicide probability E. Anxiety/Stress disorders 5. Comprehensive neuropsychological evaluations. When indicated by the neuropsychological screen or claimant’s history, a comprehensive neuropsychological evaluation consisting of accepted evaluation procedures should be completed by a psychologist qualified and trained in neuropsychology. A psychologist qualified to interpret neuropsychological evaluations should document extensive training at the graduate or post-doctoral level in a program specifically designed for neuropsychological training or complete intensive training in administration and interpretation by a qualified neuropsychologist.

6. Integration of findings. A detailed report integrating all the data from observations, test responses and their interpretation, results of previous assessments and any other relevant data such as school records, rehabilitation reports, and medical findings should be prepared. Address any inconsistencies noted between behavioral observations and tests responses or previous assessments.

12.8. Psychiatric Independent Medical Evaluation (IME) Guidelines.

a. Professional standards for examiners. Examiners for the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, are expected to adhere to professional standards of competent practice established by the State Licensing Boards, National Certifying Organizations and Professional Associations, and to Codes of professional, ethical, and legal conduct promulgated by these organizations. They must also follow the West Virginia Workers’ Compensation Guidelines for Psychiatric Impairment (Exhibit B) and applicable West Virginia law. Clinical assessment procedures and measures utilized in forming an expert opinion must be generally accepted in the expert’s scientific community. In forming his expert opinion, the examiner must use the standard of “Reasonable Medical Probability”, meaning that the presence of the disorder, and the causation of the disorder by a work injury or disease is “more likely than not.”

b. General principles. A psychiatric examiner should be an objective evaluator who has no conflict of interest and no prejudgement regarding the claimant’s condition or the presence or absence of impairment. The examiner should not be the treating psychiatrist or vice versa.

c. Psychological evaluations and testing must be a part of every initial IME of a claimant to provide a comprehensive view of his mental, intellectual, and personality functioning. A psychological test report may be submitted as a separate document from the psychiatric IME.

d. Reports shall be prepared in a manner consistent with the Psychiatric IME Report Outline, attached hereto as ‘Exhibit C’ and incorporated herein by reference.

1. Identifying data. Provide identifying data as outlined in the attached guideline.

2. Consent. Explain to the claimant the nature and purpose of the examination.

3. Chief complaint. Ascertain the claimant’s primary complaint.

4. History of present illness. Chronological background and development of the symptoms or behavioral changes culminating in the present state.

A. Using the attached guideline, provide a detailed chronological accounting of the circumstances surrounding the injury and the development of the symptoms or behavioral changes culminating in the present state.

5. Personal and social history A. Obtain a detailed personal and social history from the claimant using the attached guideline.

6. Review of systems A. Provide a review of the claimant’s general organ and neurological systems.

7. Past medical history A. Using the attached guideline, provide a complete accounting of the claimant’s past medical history.

8. Family medical and psychiatric history A. Using the attached guideline, provide a complete accounting of the claimant’s family medical and psychiatric history.

9. Mental status exam 10. Summary of other sources of information A. Using the attached guideline, provide a complete accounting of pertinent psychiatric information obtained from other sources.

10. Diagnosis A. List all psychiatric diagnoses and conditions according to the latest edition of Diagnostic and Statistical Manual of Mental Disorders published by the American Psychiatric Association.

11. Opinions A. For each psychiatric diagnosis, provide information on each of the five areas listed in the attached guideline. The basis of all opinions must be explicit and the report should contain the evidence upon which the conclusions and opinions were based. All reasoning processes should be outlined to explain exactly how the particular conclusion was reached. Opinions must be stated in terms of “reasonable medical certainty” or “reasonable medical probability.”

12. Recommendations A. Using the attached guideline, provide recommendations for further examinations, consultations, re-examinations, psychiatric treatment and rehabilitation.

W. Va. Code R. § 85-20-13 Coverage Medication Checks

Medication checks may be billed if needed, but should be reported using the appropriate Evaluation and Management or Drug Management procedure codes. Medication checks for psychiatric medication require the use of an ICD-9-CM code to identify the compensable mental health condition.

W. Va. Code R. § 85-20-14 Medication/Injections

Professional services for administering injections to an injured worker in an office setting for the treatment of a compensable injury may be reimbursable. Effective January 1, 2003, the cost of medication administered through other-than-oral method may be billed as a separate line item using appropriate HCPCS II “J” codes. Legend drugs dispensed by physicians will not be reimbursed except in emergency situations.

W. Va. Code R. § 85-20-15 Dental Services

15.1. Standard dental treatment necessary as a result of a compensable injury to the face or head is covered under the Workers’ Compensation program. Repair or replacement of dentures and other dental appliances damaged in an accident will not be approved for payment unless the injured worker suffers a compensable physical injury in the accident. Except in cases of emergency, prior authorization must be obtained for any and all dental services provided.

15.2. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not approve payment for treatment of a preexisting dental deficiency or disease, unless it is clearly established that such preexisting condition is prohibiting treatment of or recovery from an industrial injury. In such cases the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, must be provided with a complete report of the preexisting condition and authorization granted prior to rendering treatment.

W. Va. Code R. § 85-20-16 Experimental Procedures

16.1. Services investigative or experimental in nature or unsafe and not accepted by the general medical community are not reimbursable by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

16.2. To be considered for reimbursement by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, medical devices must have gone through FDA pre-market notification submission or pre-market approval application or be exempt for commercial distribution on the national level. Pre-market approval designation is preferred because this designation requires sufficient information to reasonably assure the safety and effectiveness of the device.

W. Va. Code R. § 85-20-17 Unusual treatment

17.1. In cases requiring unusual treatment not contemplated under ordinary circumstances, the medical vendor must inform the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, immediately of the condition or complications present. If the necessity for additional treatment and its causal relationship with the compensable injury is clearly indicated, authorization for such treatment may be granted by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, if it otherwise is deemed to be medically reasonable and additional professional fees may be paid at a rate commensurate with the services rendered in addition to the fee specified by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

17.2. New or experimental therapies always require prior authorization from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will require a detailed, credible and otherwise sufficient explanation of the anticipated outcomes of the proposed therapy. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may authorize a trial of the therapy, for a duration identified by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, prior to acceptance of any modality. Approval of new or experimental therapies is within the sole discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

W. Va. Code R. § 85-20-18 Organ Transplants

18.1. Transplants are not generally accepted or reimbursed by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable; however, requests are reviewed on a case-by-case basis. All transplants must be pre-approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, prior to issuance of authorization.

18.2. Transplants which are needed, in whole or in part, because of an intervening cause, such as long term alcohol consumption, smoking, or other tobacco use shall be declined coverage by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

W. Va. Code R. § 85-20-19 Other Non-Covered Services

19.1. Diagnostic Studies. No payment is allowed for:

a. Plethysmography;

b. Temperature gradient studies;

c. Fomentation;

d. Thermography;

e. Routine lab studies in back injury claims; or f. Routine X-rays which the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, determines, in its sole discretion, are medically unreasonable or medically unsupported as defined under 85 C.S.R. 28.

19.2. Payment to Complete Reports. No payment is allowed for routine status reports, Attending Physician’s Report WC-219 Form, other routine reports requested by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, relating to care that has already been provided, or for completion of the medical portion of the report of injury. Providers shall not charge injured workers or any others for completion of the WC-219 form.

19.3. Miscellaneous. No payment will be made for the following services:

a. Telephone calls;

b. Telephone consultations by providers;

c. Writing or phoning prescriptions;

d. Education materials;

e. Babysitting;

f. Lost or stolen items;

g. Vitamins;

h. Diet pills;

i. Dietary supplements;

j. Weight loss programs;

k. Physical fitness programs;

l. Acupuncture;

m. Swimming therapy/aquatic therapy (unless under direct supervision of a physical therapist);

n. Homeopathy;

o. Massage therapy, except that up to 3 sessions of massage therapy will be allowed if massage therapy is not the sole means of treatment;

p. Copying or supplying needed records;

q. Costs associated with office audits; and r. Saunas.

W. Va. Code R. § 85-20-20 Payment for appearance at hearings

A party causing the cancellation of an examination of a medical doctor, osteopath, or chiropractor may be charged a $100 cancellation fee by said provider if forty-eight (48) hours notice of said cancellation is not provided.

W. Va. Code R. § 85-20-21 Treatment of unrelated conditions

The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may pay for treatment of a condition which was not caused by the injury only if the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, determines, in its sole discretion, that the unrelated condition is preventing recovery by aggravating the occupational injury. Any unrelated condition must be reported to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, before payment is considered. Pre-existing conditions which prevent recovery but do not aggravate the compensable injury shall not be covered.

W. Va. Code R. § 85-20-22 Consultations

22.1. The treating physician may refer an injured worker for a first-time consultation without prior authorization when the need can be clearly documented and has been reported to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. The first-time consultation to a specialist does not require prior authorization; however, should additional consultations in the same specialty field be performed, Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, approval is required.

22.2. The consultant must submit a written report to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, after the exam has been carried out. The report shall contain the information required in Rule 8.2 and 8.1 above. Invoices from providers, other than the attending physician, should specify the name of the referring physician. In billing those services, the appropriate consultation procedure code from the Evaluation and Management section of the AMA CPT coding system shall be utilized.

22.3. If a specialist will be providing continuing care, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, must be notified so that an approval for a transfer or concurrent care may be considered.

22.4. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, reserves the right to arrange a consultation prior to authorizing any services, equipment, or supplies. Requests for treatment will be approved or denied upon review of the entire medical record.

22.5. Consultation Versus Referral. A consultation is considered to include those services rendered by a specialist whose review and opinion of the evaluation and/or treatment of an injured worker’s condition is requested by another provider, or an official party in the claim, such as the injured worker’s attorney, the employer, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, etc. The consulting provider must submit a written report that becomes part of the Commission’s, Insurance Commissioner’s, private carrier’s or self-insured employer’s, whichever is applicable, claim record on the injured worker. When the consulting provider assumes the continuing care of the injured worker, any subsequent services rendered by this provider are no longer considered a consultation.

22.6. A referral is considered to be the transfer of the total or specific care of a patient from one provider to another. If this involves a change of treating physician, an authorization is required from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. A referral for specialty services, such as surgery, requires approval by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

W. Va. Code R. § 85-20-23 Miscellaneous Coverage and Reimbursement Issues

23.1. Hernia. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall not approve payment for conservative treatment of an otherwise compensable hernia condition, except for the initial examination for diagnostic purposes, and except where it is shown that the employee has some chronic disease or is otherwise in such physical condition that it is considered unsafe for him to undergo such operation. Payment for surgical repair of a hernia cannot be considered until all required forms have been filed and the claim determined compensable.

23.2. Amputation reports. In cases involving amputations, the physician must mark the exact line of amputation on the prescribed form (Amputation Chart). To avoid error, the exact point of amputation must also be described in the written report and the Amputation Chart and report must be carefully checked to be certain that they agree.

IV. SPECIFIC TREATMENT GUIDELINES

The following are treatment guidelines for specific conditions. However, the usage of the term “guidelines” should not be interpreted to suggest that the guidelines are to be given any less legal weight than an exempt legislative rule is otherwise given. The provisions of Section 4 of this Rule apply in their entirety to these guidelines.

W. Va. Code R. § 85-20-24 Treatment Guidelines: Post Concussion Syndrome

24.1. Post concussion syndrome is a clinical syndrome characterized by a variety of vague symptoms including a headache, dizziness, memory dysfunction and depression, following head trauma. There is little relationship between the serious nature of the trauma and the severity and duration of the symptoms.

24.2. The diagnostic criteria consists of a persistent dysfunctional state following head trauma without clinical or laboratory sign of serious intracranial or cervical spine disorder.

24.3. The appropriate diagnostic tests and evaluations are as follows:

a. Neurological examination;

b. MRI;

c. EEG;

d. Electronystagmyogram; and e. Neuropsychological testing if no improvement after four weeks.

24.4. Symptomatic therapy for post concussion syndrome includes:

a. Analgesia;

b. Medication for labyrinthine dysfunction;

c. The use of narcotic medications is not indicated; and d. Severe dizziness or mental/emotional problems may require hospitalization for acute care rehabilitation.

24.5. While the estimated duration of care is variable, a return to work is anticipated in four weeks or less.

24.6. The anticipated outcome is full recovery. In some cases there may be residual symptomatology such as dizziness or mental/emotional changes. These conditions may be disabling and may be permanent.

W. Va. Code R. § 85-20-25 Treatment Guidelines: Corneal Abrasion

25.1. Corneal abrasion is usually caused by a foreign body striking the eye resulting in a disruption of the corneal epithelium. The foreign body does not remain in the eye.

25.2. The diagnostic criteria consists of complaints of pain and blurred vision. Photophobia may or may not be present.

25.3. Appropriate diagnostic tests and evaluations include a determination of visual acuity, a slit lamp examination and, when indicated, a dilated fundus examination.

25.4. Treatment is administered on an outpatient basis and consists of topical antibiotics, cycloplegics, and a pressure patch. For severe pain analgesics may be indicated.

25.5. The duration of care consists of daily visits up to 72 hours with a return to work within two days unless there are complications.

25.6. The anticipated outcome is full recovery.

W. Va. Code R. § 85-20-26 Treatment Guidelines: Corneal Foreign Body

26.1. Corneal foreign body generally occurs when striking stone; hot metal may perforate the cornea and enter the eye. Contaminated foreign bodies pose a risk for corneal ulcers or systemic toxicological effect.

26.2. The diagnostic criteria consists of pain which occurs either immediately after the injury or within the first twenty-four hours, accompanied by a sensation of something in the eye, and photophobia. The pain is aggravated by blinking or moving the eye. Vision may be affected if the foreign body is in the visual axis.

26.3. The appropriate diagnostic tests and examinations consist of a comprehensive examination, including determination of visual acuity, a slit lamp examination and dilated fundus examination when indicated to rule out intraocular foreign bodies. An orbital x-ray or CT scan may be indicated if there is a suspicion of ocular or orbital penetration.

26.4. Treatment is administered on an outpatient basis and consists of the following:

a. Removal of embedded foreign body;

b. Topical antibiotics, cycloplegics, and pressure patch;

c. Analgesics for the first several days;

d. Daily visits until the cornea is healed; and e. If a scar remains in the visual axis, corrective lenses or surgery may be required to attain optimal vision.

26.5. In uncomplicated cases the injured worker is expected to return to full work within one to two days.

26.6. Full recovery is expected unless the foreign body leaves a significant scar in the visual axis, in which case decreased visual acuity may be permanent.

W. Va. Code R. § 85-20-27 Treatment Guidelines: Hyphema

27.1. Hyphema is bleeding within the anterior chamber of the eye, typically caused by a severe blunt trauma to the eye rupturing intraocular blood vessels. Hyphema may be associated with disruptions of the trabecular meshwork and lead to angle recession glaucoma. Early complications include elevated intraocular pressure causing blood staining of the cornea, vision loss, and most significantly, rebleeding which will occur in up to 30% of the cases within the third to fifth day. Rebleeding may cause marked elevation of intraocular pressure, corneal blood staining and visual loss. Late complications may include angle - recession glaucoma and cataract. Injured workers at considerable risk for complications include those with sickle cell or other coagulopathy.

27.2. Diagnostic criteria consist of a history of a blunt trauma to the eyes. The physical findings may include red blood cells visible within the anterior chamber, a layered clot filling the entire anterior chamber and/or intraocular pressure elevation.

27.3. The appropriate diagnostic tests and examinations are as follows:

a. Immediate referral to an opthalmologist as this is an ocular emergency;

b. A comprehensive examination by an ophthalmologist including a slit lamp exam, determination of the intraocular pressure, and a dilated fundus examination if possible;

c. Orbital x-rays may be indicated to rule out other orbital injuries; and d. A platelet count and coagulation study as indicated as well as a sickle prep, and hemoglobin electrophoresis as indicated.

27.4. Appropriate treatment is as follows:

a. Outpatient treatment is indicated if the hyphema is not severe, there are no complications present and the injured worker is reliable. Treatment consists of the following:

1. Strict bed rest for five days;

2. Daily eye examination;

3. Medication, which may include the following: topical cycloplegics, steroids, ocular hypotensive and oral prednisone and/or aminocaproic acid;

4. Hard shield to be worn day and night; and 5. A gonioscopy after 2-3 weeks.

b. Inpatient treatment is indicated for significant hyphema, marked intraocular pressure elevation, complication or unreliable care and consists of the following:

1. Medication as noted for outpatient care;

2. Hospitalization with strict bed rest for five days; and 3. Surgical evacuation of the clot.

27.5. Return to full work is anticipated in three weeks for uncomplicated cases. Evidence of disruption of intraocular structures dictates lifetime monitoring for glaucoma and cataracts.

27.6. The anticipated outcome is resolution of the hyphema with return of visual acuity.

W. Va. Code R. § 85-20-28 Treatment Guidelines: Eyelid Laceration

28.1. Eyelid lacerations may occur from blunt injuries or from laceration by a sharp object. They may involve only skin, eyelid muscles, eyelid margin, and the lacrimal drainage system and may be associated with an orbital foreign body.

28.2. The diagnostic criteria consists of laceration and bleeding, which may be profuse.

28.3. The appropriate diagnostic tests and examinations consist of a comprehensive examination including a visual acuity and a slit lamp examination to rule out an additional injury. A dilated fundus examination may be conducted when indicated.

28.4. Appropriate treatment is as follows:

a. Outpatient treatment is appropriate for uncomplicated lacerations. Sutures are generally removed in one to two weeks and medication may include antibiotics and analgesics.

b. Inpatient treatment is appropriate for injuries involving the lacrimal drainage system or those penetrating the orbit. The surgical repair may or may not require general anesthesia. Intravenous antibiotics are often indicated. Depending on the severity of the injury and overall condition of the injured worker, a one to two day hospital stay may be required. Medications may include topical, oral or parenteral antibiotics and analgesics.

28.5. In uncomplicated cases the injured worker is expected to return to full work within two weeks with medical follow- up in four weeks. Damage to the eyelid muscles resulting in traumatic ptosis may require six to twelve months to resolve, or may ultimately require surgical repair.

28.6. The anticipated outcome is full recovery.

W. Va. Code R. § 85-20-29 Treatment Guidelines: Canalicular Laceration

29.1. Laceration in the medial eyelid may injure the upper or lower canaliculus or lacrimal sac, resulting in constant tearing or abscess in the lacrimal sac (dacryocystitis). The presence of an infection within the lacrimal system usually requires surgical repair.

29.2. The appropriate diagnostic criteria consists of a laceration in the medial eyelid. Any laceration to the punctum may include canalicular laceration. Tearing or bloody tears and laterally displaced punctum may be present.

29.3. The appropriate diagnostic tests and examinations consist of a comprehensive examination, including visual acuity, slit lamp, examination, dilated fundus examination and probing of the canaliculus. Orbital x-rays or CT scan is appropriate if a fracture or foreign body is suspected.

29.4. Appropriate treatment is as follows:

a. Outpatient treatment is appropriate for simple lacerations and repair. Treatment consists of surgical repair including stent placement and topical drops and oral antibiotics as indicated.

b. Inpatient treatment is appropriate for contaminated or complicated wounds. Treatment consists of the following:

1. Surgical repairing; may include complex reconstruction;

2. Antibiotics and topical medications as indicated; and 3. Lacrimal bypass surgery if repair is unsuccessful.

29.5. The estimated duration of care in uncomplicated cases is two weeks with follow-up in 3 - 6 months.

W. Va. Code R. § 85-20-30 Treatment Guidelines: Orbital Contusion

30.1. An orbital contusion is usually a result of blunt trauma causing swelling and ecchymosis of the orbit not associated with any fractures or significant lacerations.

30.2. The diagnostic criteria consists of a history of a blunt trauma to the ocular area, with progressive swelling of the lids, ptosis, proptosis of the eye and diplopia.

30.3. The appropriate diagnostic tests and examinations consist of:

a. Comprehensive examination, including an assessment of visual acuity, slit lamp examination, and a dilated fundus examination;

b. Orbital x-rays; and c. CT scan may be indicated.

30.4. The appropriate treatment is as follows:

a. Outpatient treatment is appropriate in injuries without complications. Treatment includes analgesics, ice packs and systemic antibiotics as indicated.

b. Diminished visual acuity or severe pain may indicate a more extensive injury and may warrant inpatient treatment for further evaluation and treatment.

30.5. In uncomplicated cases the estimated return to work is one to two days. Disability may be longer if diplopia or ptosis persists.

30.6. The anticipated outcome is resolution of the swelling and diplopia with return of normal ocular motility.

W. Va. Code R. § 85-20-31 Treatment Guidelines: Orbital Fracture

31.1. Fractures of the orbit may be indirect, resulting in a “blowout” of the orbital floor or medial wall, or direct involving fractures of the orbital rims.

31.2. The appropriate diagnostic criteria consists of a history of blunt trauma to the eye, usually by an object larger then the bony orbital opening. The eye may appear proptosis or enophthalmic. Ocular motility is usually diminished. There is usually numbness over the cheek due to injury to the infraorbital nerve. There may be a palpable fracture of the orbital rim. There may also be a fracture of the zygomatic arch.

31.3. The appropriate diagnostic tests and examinations are as follows:

a. A comprehensive examination by an ophthalmologist is necessary, including a visual acuity, slit lamp examination and dilated fundus examination;

b. X-ray of the orbits; and c. Coronal CT scans.

31.4. Appropriate treatment is as follows:

a. In uncomplicated cases outpatient treatment is appropriate and consists of the following:

1. Outpatient follow-up for 1 - 2 weeks;

2. Oral antibiotics; and 3. Analgesics may be required.

b. Inpatient treatment is appropriate for severe fractures or other complicated injuries. Treatment consists of the following:

1. Surgical repair;

2. Medications include antibiotics and analgesics; and 3. Hospitalization from 1 - 3 days.

31.5. The estimated duration of care is as follows:

Diplopia may resolve spontaneously within one to two weeks with small fractures not requiring repair. Double vision generally resolves within two to three weeks after surgical repair unless there is intrinsic damage to the extraocular muscles.

Modified work may be required with diplopia resolved. Heavy work can generally be resumed three weeks after injury if surgery is not required, or three weeks after surgical repair.

31.6. The anticipated outcome is resolution of diplopia and normal functioning of the eye. Numbness over the cheek may persist for one year or longer and is not affected by surgical repair.

W. Va. Code R. § 85-20-32 Treatment Guidelines: Corneoscleral Lacerations

32.1. Corneoscleral lacerations are potentially severe injuries resulting from sharp objects making forceful contact with the globe.

32.2. The appropriate diagnostic criteria consists of:

a. A detailed examination by an ophthalmologist including visual acuity, slit lamp exam, intraocular pressure and dilated fundus exam.

b. CT scan of orbits may be required.

32.3. Appropriate treatment is as follows:

a. Small partial thickness lacerations:

1. Follow-up and/or patching; and 2. Bandage contact lens application and follow-up.

b. Full thickness corneal lacerations:

1. Bandage lens application;

2. Cyanoacrylate tissue adhesive and protective shield;

3. Surgical repair under general anesthesia and hospitalization;

4. Cycloplegic, steroid and antibiotic drops; and 5. Hospitalization: 0 - 7 days.

32.4. The estimated duration of care and anticipated outcome:

a. Partial thickness laceration: The injured worker should wear a protective shield for three to six weeks. Modified work may be done after several days. Normal visual function should be restored after six weeks.

b. Full thickness simple corneal lacerations: Treatment lasts from two to four months. Protective shield should be worn for six weeks. Return to full work after suture removal is normally in three to four months if vision is adequate for fusion.

c. Lacerations involving lens, uveal tissue and retina: Six months are normally required to achieve stability after which contact lens correction of the aphakic condition may allow good visual recovery.

W. Va. Code R. § 85-20-33 Treatment Guidelines: Chemical Ocular Injuries

33.1. Chemical injuries may result from an almost infinite variety of agents contacting the ocular surface, with the extent of the injury largely a function of the nature of the substance involved, how much ocular surface is involved, and duration of exposure.

33.2. The appropriate diagnostic criteria is as follows: A detailed examination is performed after copious irrigation (see treatment). It is vitally important to know the chemical causing the injury, its concentration and amount of exposure.

In alkali burns, the Hughes classification (grading or corneal haziness and loss of blood vessels at limbus) is helpful in assessing long term prognosis.

33.3. The appropriate treatment is as follows:

a. Acute phase (0 to 7 days).

1. Immediate copious irrigation using any nontoxic irrigating solution;

2. Detailed ophthalmologic exam, including pH level of eye secretions;

3. Topical steroids, antibiotic drops, topical ascorbate and cycloplegic agents;

4. Follow-up outpatient for 3 weeks;

5. Immediate referral to ophthalmologist for alkaline burns; and 6. Monitoring for systemic effect of toxin.

b. Severe chemical injuries should be hospitalized for treatment for several days.

33.4. The estimated duration of care depends on the extent of the initial injury. Milder injuries may permit return to work after several days. Moderate chemical injuries (if bilateral) may need several weeks to recover. Severe burns (if bilateral) may be blinding. In many cases corneal transplants may be able to restore vision.

W. Va. Code R. § 85-20-34 Treatment Guidelines: Functional Capacity Evaluations: Work Conditioning and Work Hardening Rehabilitation Programs. (Effective Date: February 1, 2005)

34.1. Functional capacity evaluations. Functional capacity evaluations measure or quantify the physical abilities of an injured worker identified as essential in performing suitable, gainful employment and/or objectively define an injured worker’s functional abilities or limitations in the context of safe and productive work. A functional capacity evaluation does not reflect what an individual should be able to do; but rather, what an individual can do or is willing to do at a given time. The functional capacity evaluator must be qualified by reason of training and experience and must employ valid, generally accepted scientific methodology in determining the injured worker’s ability.

34.2. Functional capacity evaluation providers. Functional capacity evaluations shall be performed by an approved licensed occupational therapist or physical therapist, with the limited exception as described within this subsection. Medical doctors, doctors of osteopathy and chiropractors shall not perform functional capacity evaluations, unless they meet the exception described in the section.

34.3. Functional capacity evaluation provider qualifications.

a. The approved functional capacity evaluation provider shall:

1. Submit specific documented post professional education and training in occupational rehabilitation and/or training for the model of functional capacity evaluation they are providing, and 2. Have a minimum of one year of supervised patient care experience in an outpatient industrial, orthopedic or sports medicine setting. A minimum of 25% of the provider in training’s work experience must be spent working with injured workers.

b. Limited exception. If approved by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, nationally certified athletic trainers, exercise physiologists, medical doctors, doctors of osteopathy and chiropractors may be allowed to perform functional capacity evaluations.

1. In its sole discretion the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may grant this limited exception only to those that have demonstrated to the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, the ability to perform high quality functional capacity evaluations. At the sole discretion of the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, those providers who demonstrate their skill in the performance of these services may be allowed to provide these services. These providers will be subject to the usual review and quality assurance programs (review of applicants and monitor performance) as designated by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Each approved provider will successfully complete a number of test cases. The primary goal of these guidelines is to assure only valid, high quality exams are rendered to injured workers.

2. Exams performed by commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, approved providers under this limited exception may be required by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to be supervised by a licensed occupational therapist or physical therapist. All functional capacity evaluations performed by these providers may also be required by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to be signed by the person performing the exam and by the supervising licensed occupational therapist or physical therapist.

3. Functional capacity evaluations performed by unapproved providers shall have no force and effect for evidentiary purposes, nor shall the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, pay for this service.

c. The commission may perform site inspections and all functional capacity evaluation providers must meet the commission’s functional capacity evaluation criteria. Upon termination of the Commission, this provision regarding site inspections shall also terminate.

d. The commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall require each approved provider to successfully complete a number of test cases. An ongoing quality assurance system will monitor the quality of functional capacity evaluation providers after a provider is approved. The commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will establish the quality assurance system.

34.4. Indications for functional capacity evaluations. A functional capacity evaluation is indicated if the medical, physical therapy, work hardening, work conditioning records are unclear in regard to the injured worker’s physical and functional abilities to return to suitable gainful employment or proceed with a vocational rehabilitation plan.

34.5. Authorizations for functional capacity evaluations. If a treating provider determines a functional capacity evaluation is needed, the initial functional capacity evaluation can be performed without prior authorization, as long as it is a Level 1 examination; Provided, if the functional capacity evaluation is to be performed by a treating provider, then pre-authorization is required to be received from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, for all functional capacity evaluations. All subsequent functional capacity evaluations performed by non-treating providers will require prior authorization.

34.6. Purpose. The purpose of the functional capacity evaluation is to enable the provider to:

a. Determine the injured worker’s physical and functional status;

b. Determine if the injured worker is able to return to the pre-injury job;

c. Determine the injured worker’s Physical Demands Strength Rating level and other capabilities for the physical demands of work as defined by the United States Department of Labor. For definitions related to functional capacity evaluations, see Appendix §85-20-F; and d. Determine the injured worker’s material and non-material handling abilities.

34.7. Types of functional capacity evaluations. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will recognize and reimburse for two (2) levels of functional capacity evaluations, a Level 1, or limited functional capacity evaluation, and Level 2, or comprehensive functional capacity evaluation.

a. A Level 1 functional capacity evaluation will be performed prior to entry into a work hardening or work conditioning program or as a focused physical and functional evaluation prior to returning to pre-injury employment or objectively identified vocational rehabilitation goals.

1. The FCE provider generally will perform a Level 1 exam in a one (1) to, two (2) hour timeframe.

b. A Level 2 exam will be a comprehensive evaluation used for the quantification of an injured worker’s physical and functional abilities to establish a vocational rehabilitation plan or goal, permanent total disability evaluation or as a physical and functional evaluation prior to entering a job search.

1. The provider will generally perform a Level 2 evaluation in a three (3) to four (4) hour timeframe.

c. Functional capacity evaluations are to be performed using standard and generally accepted tests, protocols and methodologies and will address issues associated with worker participation and physical effort. Restrictions in the ability to perform a physical action, task or activity in an efficient, typically expected or competent manner may be physiological, biomechanical or psychophysical in nature. Therefore, the evaluator should address whether the performance restrictions are physiological, biomechanical or psychophysical in nature.

d. Components of all functional capacity evaluations include but are not limited to a review of medical records, worker interview, physical examination and tests simulating real functional tasks addressing capacity to fulfill the material and non-material handling requirements of work as defined by the United States Department of Labor.

1. Unless otherwise specified, requested, or documented to be of limited utility because of lack of relevance to the vocational goal or determined to be a safety hazard to the injured worker by the evaluator, material handling testing will, at a minimum, include: a maximum safe lift, floor to waist lifting, waist to shoulder lifting, overhead lifting, carrying, pushing, and pulling.

2. Unless otherwise specified, requested or documented to be of limited utility because of lack of relevance to the vocational goal or determined to be a safety hazard to the injured worker by the evaluator, non-material handling test will, at a minimum, include: stair climbing, standing, walking, sitting, balancing, reaching, stooping (bending), crouching (squatting), kneeling, crawling and handling (grasping).

34.8. Functional Capacity Evaluation Report. The functional capacity evaluation report shall contain, as a minimum:

a. A summary of the injured worker’s compensable and non-compensable injuries and/or coexistent physical or medical impairments or diagnoses as they relate to specific job demands of the injured worker’s pre-injury employment or identified vocational goal;

b. The length of the evaluation and the test components of the evaluation and the methodology used;

c. The injured worker’s material handling abilities, including lifting, carrying, pushing and pulling;

d. The injured worker’s non-material handling abilities, including standing, walking, sitting, climbing, balancing, stooping, kneeling, crouching, crawling, reaching and handling;

e. The injured worker’s demonstrated Physical Demand Level and demonstrated areas of restriction or limitations in the Physical Demand Level as outlined in the United States Department of Labor’s Dictionary of Occupational Titles;

f. The reliability of injured worker’s reported symptoms including consistencies and inconsistencies between injured worker’s subjective reports, medical record review, documented physical findings, and test results;

g. The injured worker’s level of demonstrated physical effort/cooperation and/or presence of nonorganic signs and symptoms and/or presence of symptom magnification syndrome or chronic pain disorder;

h. The signature of the person performing the test and, if appropriate in accordance with the provisions of 34.3.b. the signature of the individual supervising the test, with their qualifications and/or certifications that testing was performed in accordance with these rules and the established professional standards;

i. Documentation that the injured worker’s informed consent was obtained prior to testing; and j. The evaluator’s summary with conclusions and recommendations.

34.9. Work Conditioning and Work Hardening Rehabilitation Programs. Occupational rehabilitation programs, including work conditioning and work hardening, have the goal of assisting the injured worker with unresolved physical, functional, behavioral, and vocational needs following acute care. The treatment focus of these rehabilitation programs is aimed at restoration of work-related function. Physical and occupational therapists provide the physical and functional components within these programs.

a. A work conditioning program is an intensive, work-related, goal-oriented, conditioning program designated specifically to restore systemic neuromuscular activities, including strength, endurance, movement, flexibility, motor control, and cardiopulmonary functions. The objective of the work conditioning program is to restore or maximize physical ability and function to enable the injured worker to return to work.

b. Work hardening programs are of two types:

1. A general work hardening program is highly structured, goal-oriented, outcome focused, individualized, progressive and supervised treatment program designed to maximize physical abilities and enable the injured worker to return to work. Such a program may be offered at any time throughout the recovery phase. The program focuses on functional restoration and return to work. Goals of the program include, but are not limited to, improvement of cardiopulmonary and neuromuscular functions, including strength, endurance, movement, flexibility, stability, and motor control functions, education, and symptom relief. A general work hardening program may follow and supplement or enhance the goals achieved in work conditioning.

2. A comprehensive work hardening program includes all the components of a general program but is also multidisciplinary in nature and must meet the guidelines on Multidisciplinary Pain Management. See section thirty-six of this Rule (Rule 20, §85-20-36) for a description of the services typically associated with these types of programs. All comprehensive work hardening programs and multidisciplinary functional restoration programs require prior authorization from the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and are handled on a case-by-case basis.

34.10. Work Conditioning and Work Hardening Rehabilitation Programs: Admission Criteria.

To be eligible for these programs, the injured worker must have a return to work goal, a job goal, have stated or demonstrated willingness to participate, and have identified systemic neuromuscular physical and functional deficits that interfere with work.

a. A functional capacity evaluation is required prior to entering any work conditioning or work hardening program unless it is determined and documented to be unnecessary by the program director and/or treating physician.

b. A vocational assessment that is job-focused and individualized may be required prior to entry into a work hardening program. A limited vocational assessment may be appropriate when the goal is a return to the pre-injury employer. A functional job description or job analysis may be required when modified or alternate duty with the pre-injury employer is the goal. A rehabilitation evaluation is required when employment with a new employer is the goal.

34.11. Work Conditioning and Work Hardening Rehabilitation Programs: Discharge Criteria.

The injured worker shall be discharged from the work conditioning or work hardening program when:

a. The anticipated goals and expected outcomes have been met;

b. It can be documented that the injured worker is unable to continue to progress toward the anticipated goals and expected outcomes;

c. It can be documented that the injured worker declines to continue the program;

d. It can be documented that the injured worker fails to comply with the requirements for participation; or e. The program director determines the injured worker will no longer benefit from the work conditioning or work hardening program. Upon discharge from the work conditioning or work hardening program, the program director shall notify the claimant’s employer, the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and/or any other referral source with the following information:

1. Reasons for program termination;

2. Clinical and functional status;

3. Recommendations regarding return to work; and 4. Recommendations for follow-up services.

f. Only the injured worker’s treating physician, program director, or the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall discharge an injured worker from a work conditioning or work hardening program.

34.12. Referrals to Work Conditioning and Work Hardening Programs.

Referrals to work conditioning and work hardening programs will be accepted from the treating physician of record, the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, or an independent medical evaluator selected by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

34.13. Components of an Occupational Rehabilitation Program. An occupational rehabilitation program shall consist of the following components:

a. Providers of work conditioning and work hardening shall have the following qualifications.

1. Work conditioning and work hardening programs will be directed by a licensed occupational therapist or physical therapist who has completed training in a specific industry accepted work conditioning or work hardening training model. The provider will have a minimum of one year of supervised patient care experience in an outpatient, industrial, orthopedic, or sports medicine setting, of which a minimum of 25% must have been spent with work-related injury care.

2. It is acknowledged that other providers may be able to provide highly useful services. At the sole discretion of the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, those treating providers who demonstrate their skill in the performance of these services may be allowed to provide these services. These treating providers will be subject to the usual review and quality assurance programs (review of applicants and monitor performance) as designated by the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable,. Each approved provider will successfully complete a number of test cases. The primary goal of these guidelines is to assure high quality services are rendered to injured workers.

3. A licensed health care professional must be “on site” at all times while treatment is being rendered to the injured workers.

4. The supervising daily staff members of the work conditioning and work hardening program may be composed of exercise physiologists, nationally certified athletic trainers, licensed occupational therapists, licensed physical therapists, licensed occupational therapy assistants and licensed physical therapy assistants.

5. All program directors and supervising daily staff members shall be approved by the commission’s, Insurance Commissioner’s, private carrier’s or self-insured employer’s, whichever is applicable, approval process.

6. Any change in program directorship or supervising daily staff must be communicated to the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

7. The staff to injured worker ratio in both work conditioning and work hardening programs will not exceed 1 to 8 at any time.

8. Direct observation of program participants by a staff member is required at all times.

b. Work conditioning and work hardening programs are a form of physical medicine services. These programs are also subject to the treatment services restrictions contained in the physical medicine treatment guidelines. The commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, on a case-by-case basis may approve initiation of such programs when their provision will exceed such guidelines.

c. Work conditioning will be attended two (2) to four (4) hours per day. Work hardening will be attended four (4) to eight (8) hours per day. Work conditioning and work hardening programs will be attended five (5) days per week. Program duration for either work conditioning or work hardening will not exceed four (4) weeks; however, the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, on a case-by-case basis, may approve program extension.

d. Material handling components of the work conditioning and work hardening programs shall be at a minimum: 12” and floor to waist lift, waist to shoulder lift, overhead lift, carry, push, pull, and maximum lift.

e. Non-material handling components of the work conditioning and work hardening programs shall typically include balancing, overhead reach, forward reach, repetitive squatting, sustained kneeling, crawling, stair climbing, walking, standing, and sitting. Both material handling and non-material handling goals shall be consistent with identified functional goals of the individual injured worker.

f. The educational component of the work conditioning/work hardening programs will include prevention of re-injury, benefits of a home exercise program, self-treatment of symptoms, activity control of symptoms, body mechanics, benefits of exercise, nutrition, and healthy living habits.

g. All work conditioning programs shall have a minimum of 1,250 square feet of dedicated non-office clinic space. The commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may perform site inspections and all work conditioning and work hardening programs must meet the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, facility criteria.

34.14. Providers of work conditioning or work hardening programs are required to provide the following information in their reports in the timeframe as provided:

a. A brief summary of the injured worker’s medical issues and problems as related to specific job demands;

b. Initial and discharge evaluations;

c. Attendance records, including the time spent in each session;

d. Duration of the program;

e. Material handling abilities;

f. Non-material handling abilities;

g. The injured worker’s current physical demand strength rating as defined in the United States Department of Labor, “Dictionary of Occupational Titles,” and deficits, if any, for the physical demand level of the established vocational goal;

h. Consistency of the injured worker’s reported symptoms, including consistencies and inconsistencies between the injured worker’s subjective reports and physical findings.

i. Level of demonstrated physical effort, cooperation and/or the presence of symptom magnification syndrome or chronic pain behavior;

j. Treatment summary with conclusions, restrictions, limitations, and recommendations;

k. Signature of the program director; and l. Reports will be bi-weekly, upon exit or discharge from the program and/or as requested by the referral source or the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

34.15. If an injury or incident occurs during a work conditioning or work hardening program, a signed and dated incident report must be filed by the treating therapist and submitted to the the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, within three (3) working days of the incident. The incident report shall include as a minimum:

a. Name of the injured worker;

b. Claim number of the injured worker;

c. Date of incident;

d. Description of incident;

e. Description of injury to the injured worker;

f. Name of witnesses;

g. Name of facility, and supervising daily staff member; and h. Name of facility director.

Following an injury or incident, unless in the case of an emergency, the injured worker will be referred by the facility to his treating physician for re-evaluation. The work conditioning/work hardening program may be temporarily suspended. The injured worker’s ability to resume the work conditioning/work hardening program will be evaluated on a case-by-case basis and the decision to re-enter the program will be made by the program director in conjunction with the treating physician and the commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

W. Va. Code R. § 85-20-35 Treatment Guidelines: Cervical Musculoligamentous Injury (Sprain/Strain)

35.1. Symptoms are believed to be related to a partial stretching or tearing of the soft tissues (muscles, fascia, ligaments, facet joint capsule, etc.). Neck pain may be accompanied by vague upper extremity complaints. The recovery period is of variable duration, but generally is less than three or four weeks.

35.2. The appropriate diagnostic criteria consists of the following:

a. Pertinent historical and physical findings documenting the mechanism and degree of force and the time sequence before the onset of symptoms is important. The onset of neck pain and paraspinal muscle spasm begins either suddenly after the injury occurs or develops gradually over the next 24 hours. This pain is usually aggravated by motion of the neck and frequently is relieved by rest. It can be accompanied by paresthesia or a sense of weakness in the upper extremities related to the muscle spasm in the neck. Physical findings include tenderness to palpation, spasm of the paravertebral muscles and aggravation of the pain with motion.

35.3. The appropriate diagnostic tests and examinations are as follows:

a. If indicated by examination, anteroposterior, lateral, lateral flexion and extension x-rays of the spine and open mouth view to visualize the odontoid process are appropriate. Other x-rays may be added to the roentgenographic series as indicated. Straightening of the cervical spine is frequently observed on the lateral x-ray.

b. Further imaging may be indicated depending upon clinical course.

35.4. The appropriate treatment is as follows:

a. Outpatient treatment:

1. Nonoperative treatment:

A. Indications: Almost all injured workers with cervical musculoligamentous (sprain/strain) can be treated conservatively. However, disruption of intervertebral ligaments with subluxation is an indication for surgery.

B. Treatment options:

1. Analgesics;

2. Muscle relaxants;

3. Anti-inflammatory drugs, non-steroidal;

4. Physical modalities and/or rehabilitative procedures may be helpful;

5. Occasional trigger point injections may be helpful; and 6. Manual manipulation and mobilization.

b. Inappropriate treatment:

1. Operative treatment is inappropriate for cervical strain;

2. Narcotic medication for prolonged period of time; and 3. Inpatient treatment.

35.5. The estimated duration of care is 1 to 4 weeks; not to exceed 8 weeks.

35.6. A diagnosis of sprain/strain exceeding this 8 week period requires detailed re-evaluation. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may require an IME to verify the diagnosis and will authorize continued treatment/coverage in its sole discretion.

35.7. The anticipated outcome:

a. Resumption of normal activity without residual symptoms in most cases.

35.8. Modifiers (age, and co-morbidity). If the injured worker has not responded to the above-outlined treatments within four weeks, the injured worker must be referred to an appropriate specialist.

W. Va. Code R. § 85-20-36 Treatment Guidelines: Acute Herniated Cervical Disc

36.1. A cervical disc syndrome is a condition in which there is a bulging or rupture of the intervertebral disc. This may be lateral, compressing a root and causing a radiculopathy, or midline, compressing the spinal cord and causing a myelopathy. This most often occurs at the C4-5, C5-6 and the C6-7 disc levels. When the C4-5 disc ruptures there is pressure on the C5 root. This may cause pain over the top of the shoulder in the “epaulet” distribution. Tingling is not common. There may be weakness of the deltoid muscle. Occasionally the biceps reflex is diminished. When the C5-6 disc ruptures there is pressure on the C6 root with pain as well as tingling and decreased sensation over the thumb and index finger, weakness of elbow flexion, and diminution of the biceps and brachial radialis reflexes. When the C6-7 disc ruptures there is pressure on the C7 root with pain and tingling in the index and middle fingers, weakness of elbow extension, and diminution of the triceps reflex. There can be more extensive weakness than noted above, although the description is that of the classic syndrome. There may be changes in other reflexes, and the sensory abnormalities may be somewhat variable. Pain, sensory changes or weakness may predominate because of ill-defined differences in sensibility of the different components of the nerve. Over time the pain may resolve due to permanent damage to pain fibers, leaving the injured worker with motor and sensory dysfunction, which still may merit decompression.

Myelopathic symptoms may occur due to central disc protrusion and cause sensory (particularly posterior column) and motor dysfunction in the arms and legs, and bladder and bowel symptoms.

36.2. The appropriate diagnostic criteria is as follows:

The onset may be sudden or insidious. Neck pain is common, especially at night and with the neck in extension. Neck motions are frequently limited and cause an exacerbation of pain. The hallmark is arm pain and/or paresthesia. The pain is often described as a sharp, shooting pain that radiates from proximal to distal along the anatomic course of the nerve.

The Spurling test (neck extension and tilting the head toward the painful arm followed by axial compression of the cervical spine) is often positive. The neurological exam may be normal if compression is not too severe or there may be weakness, sensory impairment and/or altered reflexes.

36.3. Appropriate diagnostic tests and treatments are as follows:

a. In the face of a typical history and physical examination, plain spine x-rays are indicated since treatment may be altered if there are associated problems such as ostephytes.

b. Non-operative treatment:

1. Cervical traction;

2. Cervical collar may be used; not to exceed one week;

3. Use of analgesics, mild relaxants, and non-steroidal anti-inflammatory drugs;

4. Appropriate physical medicine referral to include physical agents; exercise, and manipulation/mobilization; and 5. Indications for inpatient admission:

A. Inability to control pain; and B. Progressive neurological deficit.

c. Injured workers with significant neurologic deficit, uncontrollable pain, or who fail to improve after two to four weeks should be referred for consultation to a surgeon who does cervical operations.

d. Neuro-Imaging examinations:

1. Myelography followed by CT scan with contrast medium in place. Myelography with CT scan is the established test for evaluating the presence of nerve root compression. To warrant treatment, abnormalities must relate to the clinical problems of the injured worker. There is no reason to admit an injured worker to a hospital overnight for a myelogram. Persistent post-myelogram syndrome should be treated by hydration, caffeine, and/or blood patch as an outpatient procedure;

2. MRI, although occasionally it may not provide complete information about root compression or bony anatomy; and therefore, 3. EMG and nerve conduction velocity studies may be required to determine exact level of compression and rule out peripheral nerve compression, but should be delayed 21 days from onset of symptoms.

e. Inappropriate diagnostic tests and examinations:

1. Computed tomography without myelographic dye, although this may be helpful for other conditions such as infection or tumor;

2. Myeloscopy;

3. Dermatomal somatosensory evoked potentials;

4. Thermography; and 5. Spinoscopy.

f. Operative treatment:

1. Failure of non-operative treatment to relieve symptoms;

2. Quality of injured worker’s life significantly impaired; or 3. Presence of significant or progressive neurologic deficit, either radiculopathy or myelopathy diagnosis confirmed by myelogram with CT scan, or by MRI.

g. Procedure options:

1. Laminectomy with excision of disc or arthritic spur or foraminotomy. Fusion is not indicated for a simple disc. Discharge 2 - 4 days post op. Posterior fusion is not indicated unless approved.

2. Anterior cervical diskectomy, especially in cases where there is medial compression. Discharge 1-3 days post op.

3. Complicated - after wound infection, thrombophlebitis, spinal fluid leak, or other significant complication has been controlled; and 4. Additional physical and/or vocational rehabilitation may be required.

36.4. The estimated duration of care is as follows:

a. Non-operative treatment - if still symptomatic by six weeks, must be referred for surgical consultation; and b. Operative treatment - depending on degree of neurological impairment and persistent pain. If pain persists over three months after surgery, the injured worker should be referred for multidisciplinary pain management. If a disabling neurological deficit persists more than three months, vocational guidance should be considered. If a fusion has been done, the injured worker may require short and/or long term modified work.

W. Va. Code R. § 85-20-37 Treatment Guidelines: Low Back Musculoligamentous Injury (Sprain/Strain)

37.1. Strains and sprains are a common cause of acute low back pain encountered in the general population. These injuries often are the result of the mechanical stresses and functional demands placed on the low back area by everyday activities. Symptoms are believed to be related to a partial stretching or tearing of the soft tissues (muscles, fascia, ligaments, facet joint capsule, etc.) The conditions, for the vast majority of injured workers, are of short duration and complete recovery is the general rule. Most injured workers with a musculoligamentous injury to the low back recover rapidly, with 50% to 60% of injured workers recovering within one week.

37.2. The appropriate diagnostic criteria consist of:

Onset of low back pain and paraspinal muscle spasm begins either suddenly after the injury occurs or develops gradually over the next 24 hours. The pain is usually relieved by rest and aggravated by motion of the back. The pain usually does not radiate below the knee, and the strain is not accompanied by paresthesias or muscle weakness in the legs. Physical findings include low back tenderness to palpation, loss of normal lumbar lordosis, and spasm of the paravertebral muscles. Straight leg raising and other tests that cause spinal motion may increase low back pain. The injured worker may stand with a list to the side or in a flexed position. The neurological examination and nerve root stretch tests usually are negative.

37.3. Appropriate and inappropriate diagnostic tests and examinations are as follows:

a. Although the diagnosis of a musculoligamentous injury is not based on radiographic criteria, plain x-rays may be indicated based on mechanism of injury (actual trauma, hyperextension, compression), a high index of clinical signs of pathology, or treatment plan for manipulative therapy. Pain, which persists (no improvement) longer than 2-4 weeks or worsens may also be criteria for x-rays.

b. Inappropriate diagnostic tests and examinations during the acute phase of the first four weeks:

1. CT scan;

2. MRI;

3. Bone scans;

4. Myelography;

5. EMG;

6. *Thermogram;

7. *Evoked Potentials;

8. *Myeloscopy; and 9. *Spinoscopy; *Never appropriate c. Failure to improve in four weeks warrants an appropriate second opinion.

37.4. Treatment considerations are as follows:

a. Non-operative treatment:

1. Indications: Almost all injured workers with low back musculoligamentous (sprain/strain) can be treated satisfactorily. No indications exist for the use of surgery in the treatment of low back musculoligamentous injuries.

2. Treatment options:

A. Short-term bed rest for approximately 2 days with appropriate positioning;

B. Analgesics;

C. Muscle relaxants as needed;

D. Anti-inflammatory nonsteroidal medication;

E. Referral for physical medicine (PT, OT, DC, DO, and physiatrist);

F. Physical modalities in conjunction with proper body mechanics and flexibility, endurance, and strength reactivation exercises;

G. Manipulation of spine;

H. Occasional trigger point injections; and I. Lumbosacral corset or brace.

b. Inappropriate treatment:

1. Operative treatment is inappropriate for low back strain;

2. Prolonged bed rest beyond two days;

3. Narcotic medication for prolonged period;

4. Home traction; and 5. Inpatient treatment.

37.5. The estimated duration of care: 0 to 4 weeks; not to exceed 8 weeks.

37.6. A diagnosis of sprain/strain exceeding this 8 week period requires detailed re-evaluation. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may require an IME to verify the diagnosis and will authorize continued treatment/coverage in its sole discretion.

37.7. The anticipated outcome is resumption of normal activity without residual symptoms in most cases. Transitional activities may be required.

37.8. Modifiers (age, and co-morbidity). Co-morbidity (e.g., degenerative disc disease, spondylolisthesis, segmental instability, osteoporosis, spine deformity) may be associated with a higher incidence of persistent symptoms but are not compensable conditions.

W. Va. Code R. § 85-20-38 Treatment Guidelines: Herniated Lumbar Disc

38.1. Injured workers under treatment by their own physician who fail to improve after two to four weeks - refer to a qualified orthopedic surgeon or neurosurgeon for consultation and/or treatment.

Herniations occur most commonly through a posterolateral defect, but midline herniations may occur. Resulting compression of the spinal nerve root causes inflammation and pain, usually along the anatomic course of the nerve. In the lumbar spine, this most often occurs at the L4 and L5 disc levels, causing pressure on the corresponding L5 and S1 nerve roots. As a result of both mechanical and biochemical changes around the nerve root, the injured worker will experience pain, paresthesia, and possibly weakness in the leg or legs usually below the knee. The rare herniations at the L1, L2 and L3 levels are usually associated with pain, paresthesia, and weakness above the knee. Back pain may or may not be a presenting complaint with any herniated lumbar disc.

38.2. The appropriate diagnostic criteria consist of:

Back pain is usually the first symptom and may or may not abate as the pain and paresthesias begin to radiate down the leg. The leg pain is often described as a sharp, shooting pain that radiates along the anatomic course of the nerve from proximal to distal. The onset may be sudden or insidious. The injured worker often has difficulty getting up from sitting or supine positions and commonly leans or lists to one side or the other. Motion of the spine is limited due to pain and muscle spasm. The neurological examination may be normal if the compressed nerve is still functional, or it may yield objective evidence of impaired nerve function (e.g. atrophy, weakness, sensory alteration or diminished reflex) depending upon the nerve root affected. Signs of nerve root tension (e.g. positive straight leg raising) may also be present.

When the L4 disc herniates, it usually causes pressure on the L5 nerve root resulting in weakness of the great toe extensor or other dorsiflexor muscles of the foot and sensory loss along the medial aspect of the foot to the great toe, but it is usually not associated with reflex abnormality. When the L5 disc herniates, it usually causes pressure on the S1 nerve root, resulting in a sensory deficit in the posterior calf area and lateral aspect of the foot in addition to a diminished Achilles’ reflex and occasional weakness of the plantar flexors of the foot.

38.3. Diagnostic test and examination considerations are as follows:

a. Clinical diagnosis is supported by these studies:

1. Plain spine radiographs (and on rare occasions bone scans) to rule out other conditions such as tumor, infection, fracture and congenital anomalies, if not previously done;

2. MRI; and 3. Myelography with CT scans.

b. Inappropriate diagnostic tests and examinations:

1. Myeloscopy;

2. Dermatomal somatosensory evoked potentials;

3. Thermography; and 4. Spinoscopy.

c. Supporting evidence. EMG may be helpful in rare cases. Discography can occasionally be helpful. Selective lumbar nerve block may be helpful for diagnosis.

38.4. The appropriate treatment is as follows:

a. Outpatient treatment:

1. Non-operative treatment:

A. Short period of bed rest, up to 10 days with analgesics, mild relaxants, and non-steroidal anti-inflammatory drugs;

B. Physical medicine and/or rehabilitation; and C. Orthotics.

The value of periods of bed rest has not been demonstrated. Complete bed rest for prolonged periods may be deleterious to the body and should be closely monitored. A significant number of injured workers will respond to a nonoperative treatment program for herniated lumbar disc. The physician should be aware that those injured workers who have marked, early limitation of straight leg raising and those injured workers who have symptoms or physical findings suggestive of cauda equina syndrome may need early surgery. Close monitoring is indicated in those settings.

b. Inpatient treatment.

1. Non-operative treatment.

A. Indications for admission.

1. Inability to control pain; and 2. Severe or progressive neurologic deficit.

B. Treatment options.

1. Monitored bed rest with parenteral medications.

C. Indications for discharge.

1. Uncomplicated - relief or improvement of leg and/or back pain.

2. Exceptions:

(a) No response to nonoperative treatment options requiring consideration of surgical intervention; and (b) Spinal headache after myelogram requiring IV fluids or blood patch.

2. Operative treatment:

A. Indications: diagnosis confirmed by myelography with CT scan, or MRI, plus one of the following three.

1. Failure of nonoperative treatment to relieve symptoms;

2. Quality of injured worker’s life significantly impaired; and 3. Presence of significant or progressive neurologic deficit.

B. Procedure options:

1. Open removal; and 2. Percutaneous diskectomy by special approval.

C. Indications for discharge:

1. Uncomplicated - One to three days after diskectomy.

2. Complicated - after wound infection, thrombophlebitis, spinal fluid leak, or other significant complication has been controlled.

D. Home health care may be required for a short period.

E. Physical modalities and/or rehabilitative procedures.

1. Some monitoring of the injured worker’s activities may be necessary;

2. General fitness, flexibility, and simple spinal muscle strengthening are all important;

3. Injured worker should be instructed in walking program with a gradual increase in physical activities; and 4. Strengthening exercises or work simulation activities may be indicated for some injured workers.

F. Supporting evidence. Diskectomy has been proven to be a safe and effective procedure in some injured workers with herniated disc. Such surgical intervention remains elective (in the absence of a severe neurologic deficit) and the decision is based on the surgeon’s clinical judgment and the injured worker’s personal assessment of the extent to which quality of life has been impaired.

38.5. The estimated duration of care is as follows:

a. Nonoperative treatment - maximum medical improvement 0 - 12 weeks.

b. Operative treatment - 0 - 12 weeks.

38.6. Modifiers (age, and co-morbidity). Injured workers with symptoms suggestive of cauda equina syndrome will require a different approach to treatment. Cauda equina syndrome is a surgical emergency. Symptoms include low back pain and paralysis with loss of bladder and bowel control. Once this diagnosis is suspected, the injured worker should undergo prompt referral and neurodiagnostic evaluation.

W. Va. Code R. § 85-20-39 Treatment Guidelines: Lumbar Fusion

39.1. Indications of compensable lumbar fusion:

a. Injuries to bone or soft tissue that cause instability;

b. For a second or third time disc surgery, the injured worker must have a second medical opinion and prior approval from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

39.2. Lumbar fusion may also be appropriate treatment for other noncompensable conditions for which treatment will not be authorized:

a. Cancer;

b. Symptomatic spondylolisthesis; and c. Documented instability for other cause.

d. Degenerative disc disease with pre-operative documentation of instability.

e. Pseudoarthrosis.

39.3. Contraindications for lumbar fusion.

a. Primary surgery for a new, acute disc herniation with unilateral radiation leg pain.

39.4. Surgical procedures.

a. Bony fusion with or without instrumentation. A second concurring surgical opinion must be obtained before surgery unless clear evidence of a medical emergency exist.

W. Va. Code R. § 85-20-40 Treatment Guidelines: Shoulder Injury Guidelines

40.1. The term “shoulder complex” refers to the humerus, clavicle, scapula and the surrounding supporting connective tissue and emphasizes their interdependent relationship. Articulations of the “shoulder complex” are the sternoclavicular, acromioclavicular, scapulothoracic, glenohumeral, and subacromial arch.

Fractures, separations, or subluxations/dislocations of components within the “shoulder complex” result from trauma to the shoulder girdle or upper extremity. Soft tissue strains or sprains may result from either trauma or longstanding accumulative microtrauma. The rotator cuff is particularly vulnerable to overuse pathology.

Treatment of “shoulder complex” injuries is directed to restoring balanced motion in the entire complex. Because of the importance of the soft tissues, physical therapy is very important and can be lengthy. On the other hand, because the shoulder complex is so adaptable, most individuals can find alternative patterns of function in their work, home, or recreational needs while they are undergoing physical rehabilitation.

40.2. The appropriate diagnostic criteria are as follows:

a. History and physical.

1. Mechanism of injury - single episode or repetitive microtrauma.

2. Pain pattern - pain at rest, pain related to work, activities of daily living, or recreational activities, night pain; painful arc of motion; position of comfort; relative position of the pain; relative position of the neck; referred pattern (pain below the elbow suggests a radicular component).

3. Range-of-motion - active glenohumeral and scapulothoracic balance; passive forward flexion, external rotation, internal rotation, and abduction compared to the opposite side.

4. Palpation - point or zone of maximum tenderness.

5. Neurological - motor, sensory, muscle stretch reflexes for C5, C6, C7, C8 and T1 roots.

6. Special tests - apprehension; drop arm; impingement; Yergason; posterior apprehension; sulcus sign; clunk; AC spring; Adson; Awinged scapular; lateral scapular slide.

40.3. The appropriate diagnostic tests are as follows:

a. Routine imaging:

1. Shoulder series - internal, external, and transaxillary or transcapular lateral (a transthoracic lateral is of no benefit except in humeral shaft fractures, posterior dislocations of the shoulder may be missed).

2. Special imaging - requires pre-authorization and specialty referral.

A. CT scan;

B. MRI;

C. Arthrogram; and D. EMG/NCV.

40.4. The guidelines for appropriate specialty referral are as follows:

a. Failure of improvement or resolution of symptoms with conservative treatment in four weeks;

b. Radiographic evidence of fracture, subluxation, or dislocation;

c. Initial presentation of hemarthrosis;

d. Significant lack of motion compared to opposite side; and e. Suspected neurologic injury.

40.5. Appropriate treatment is as follows:

a. Fracture - subluxation/dislocation (requires specialty referral).

1. Nonoperative or operative:

A. One to four weeks of immobilization; and B. Physical therapy beginning in one to four weeks and continuing up to six months.

b. Sternoclavicular or acromioclavicular strain or grade 1 (non-displaced sprain).

1. Non-operative:

A. One to seven days of immobilization;

B. Physical therapy, modalities and range-of-motion, one to six weeks;

C. Duration of care - one to six weeks;

D. Anticipated results - resolution of symptoms and resumption of normal activities. May develop degenerative arthritis at a later date.

2. Operative (specialty referral) - no indication except evidence of degenerative changes after prolonged conservative management.

c. Rotator cuff tendinitis/bursitis.

1. Nonoperative.

A. Local steroid injections at three to six week intervals (not to exceed three);

B. Physical therapy - up to three months at decreasing intervals;

C. Job activity modification if indicated; and D. NSAIDs.

2. Operative (specialty referral).

A. Indications.

1. Failure of improvement after three to six months of conservative care;

2. Positive impingement sign; and 3. Arthrogram or MRI to determine integrity of rotator cuff.

B. Physical therapy following surgery, three to six months at decreasing intervals.

d. Rotator cuff tear.

1. History - sudden onset of pain and inability to initiate active abduction; passive abduction relatively normal; plain x-rays revealed not acute bony changes.

2. Nonoperative.

A. Physical therapy one to three weeks;

B. Specialty referral if no improvement.

3. Operative (specialty referral).

A. Arthrogram or MRI confirms tear; and B. Physical therapy following surgery, three to six months at decreasing intervals.

e. Adhesive capsulitis (frozen shoulder).

1. History - insidious pain and loss of motion in the glenohumeral joint.

2. Nonoperative.

A. Physical therapy tried one to six weeks;

B. Glenohumeral joint injection with saline distention using short acting steroids plus Xylocaine - limit two at three week intervals; and C. Specialty referral if no improvement after six to eight weeks.

3. Operative (specialty referral).

A. Manipulation if no improvement after three months.

4. Other conditions which (require specialty referral).

A. Thoracic outlet syndrome;

B. Brachial plexus injuries; and C. Ruptured biceps tendon, proximally or distally.

W. Va. Code R. § 85-20-41 Treatment Guidelines: Carpal Tunnel Syndrome

41.1. The purpose of the Carpal Tunnel Syndrome (“CTS”) Rule is to provide the treating physician with treatment guidance and treatment parameters so that the treating team can:

a. Determine if the illness is work-related; that is, determine causality.

b. Properly diagnose the illness through a careful history, physical examination and appropriate diagnostic tests and examinations.

c. Initiate timely and proper treatment; and d. Keep the injured worker in the workplace, through modified or restricted duty if necessary, as much as possible during the treatment plan.

41.2. Background. CTS is one of several nerve compression/entrapment syndromes of the upper extremity. This condition occurs when pressure increases in the canal and disrupts the normal flow of nerve impulses to the hand. The exact cause of this condition is unclear. It is often bilateral. The prevalence of CTS in the general population is approximately 3.1%. Half of CTS cases are idiopathic. Providers considering the diagnosis and compensability of CTS are advised to assess several factors, diagnostic accuracy, confounding conditions, work setting and duration of symptoms in assigning causality.

41.3. Diagnostic Accuracy. Hand symptoms may be produced by tendonitis, arthritis, tumor, interrupted blood flow, trauma or nerve entrapment at levels from the neck to the hand. Symptoms suggesting CTS include numbness and paresthesia (especially at night), weakness, uselessness and pain in a median nerve distribution. Clinical examination findings are frequently difficult to interpret. Tinel’s and Phalen’s tests have limited sensitivity and specificity. Thenar atrophy is a late sign.

41.4. Confounding Conditions. Medical conditions frequently produce or contribute to CTS. Recognition of these conditions is important for good outcomes. Diabetes mellitus, hypothyroidism, obesity, alcohol abuse, rheumatoid arthritis, postural abnormalities and other conditions can precipitate CTS symptoms. Pregnancy is a well-established risk factor for reversible CTS. Sleep disorders significantly aggravate CTS for some patients. Hobbies and sports activities may contribute to CTS symptoms. A careful look for contributing noncompensable factors may impact causality and response to treatment.

41.5. Work Setting. Occupational groups at high risk for CTS have included grinders, butchers, grocery store workers, frozen food factory workers, manufacturing workers, dental hygienists, platers and workers with high force, high repetitive manual movement. The literature notes a high prevalence of concurrent medical conditions capable of causing CTS in persons with the syndrome, without regard to any particular occupation. Studies have failed to show a relationship between normal clerical activities and CTS. When evaluating CTS in this work setting, a careful search for other contributing factors is essential. Awkward wrist positioning, vibratory tools, significant grip force, and high force of repetitive manual movements have all been shown to contribute to CTS. The Moore-Garg Strain Index is a valuable tool for assessing risk for work-related CTS.

41.6. Duration. Work-related CTS is associated with years of repetitive activity. To find CTS in workers with weeks to months of exposure suggests a pre-existing condition.

41.7. Diagnosis Criteria.

a. Pertinent Historical and Physical Findings 1. Patients usually complain of painful, burning paresthesia or numbness involving the thumb, index, long and occasionally radial aspect of the ring digit or the entire hand.

2. These symptoms are usually worse while lying down or sitting quietly.

3. Activities such as driving, holding a telephone or fixing one’s hair often precipitate the paresthesia.

4. The most common complaints usually include nocturnal paresthesia, clumsiness with loss of fine dexterity and dropping things.

5. The patient often feels as if there is a loss of circulation. The paresthesia is often relieved by actively working the fingers, shaking the hand or holding it in a dependent position.

6. Pain is usually present over the palmar wrist area and may radiate proximally as far as the shoulder or neck.

7. Findings are consistent with those of a nerve irritation.

A. Tinel’s test may be positive over the medial nerve in the proximal palm or wrist.

B. Numbness in the fingers may be elicited with the wrist in extreme extension or flexion (Phalen’s test).

C. There may be decreased sensation distal to the wrist, particularly over the thumb, index and middle fingers, inability to flex or oppose the thumb or abduct it in its own plane and thenar muscle atrophy.

D. There can be significant variations in location of pain and sensory changes.

E. The examiner also needs to evaluate additional or alternate sites of compression that can produce similar symptoms.

b. Appropriate Diagnostic Tests and Examinations 1. Radiographs of the hand and wrist if indicated by history and examination, mainly in patients with history of previous trauma or painful range of motion of the wrist.

2. Nerve conduction studies and electromyograms. (Mild cases wait 6 weeks).

3. Response to conservative measures; splinting of wrist and carpal tunnel steroid injections.

4. Laboratory studies if symptoms suggest an underlying disease such as diabetes mellitus, thyroid dysfunction or rheumatoid arthritis.

5. Radiograph of cervical spine, upper extremity and/or chest if symptoms suggest a more proximal disease process.

c. Specialist Directed Tests and Examinations 1. CT scan and MRI only if indicated by previous plain films and history pace-occupying deformity or mass.

2. Wrist arthrogram if findings suggestive of carpal instability.

d. Supporting Evidence.

1. Since double crush syndrome (entrapment of a nerve at more than one level) and systemic diseases causing carpal tunnel syndrome are not unusual, a thorough evaluation is essential.

2. EMG/NCS is the standard diagnostic modality and has high sensitivity and specificity. Regarding EMG and NCS, there is variability in the skill of the testing physician and diagnostic reference criteria do vary. This should be carefully monitored by the referring physician and by a Quality Assurance mechanism.

41.8. Treatment.

a. Non-operative Treatment 1. Indications A. Symptoms mild or moderate (but without thenar atrophy).

B. Pregnancy or other systemic problems that may be treated medically.

C. Onset of symptoms associated with work exposure, and plausibly subjective and/or objective findings.

D. Associated with other physical conditions, i.e. cervical radiculopathy.

2. Treatment.

A. Initial Four Weeks -- Options 1. Splint wrist in neutral.

2. Nonsteroidal anti-inflammatory drugs.

3. Steroid injections, optional.

4. Eliminate or modify aggravating activities with the cooperation of the employer.

5. Physical medicine.

6. Concurrent treatment of systemic disease until the injury has returned to pre-injury status.

7. Self care: ice, elevation, range of motion, stretching, exercises, postural correction, etc.

8. Referral A. If there is no substantial improvement by four (4) weeks, the injured worker should be referred for evaluation and possible treatment.

B. Treatment should be by either a physical medicine practitioner or a surgeon (orthopedic, hand, plastic, or neurosurgeon).

1. Physical Medicine.

(a) A physical medicine practitioner shall evaluate for functional anatomical lesions in the neck, shoulder, thorax, elbow and wrist. Physical medicine examiners: Chiropractor (DC), Osteopathic Physician (DO who specializes in manipulation), Physical Medicine and Rehabilitation Specialist (MD/DO, formerly known as “physiatrist”), Physical Therapist (PT), and Occupational Therapist (OT).

(b) If functional anatomical lesions are identified, two to eight (2-8) weeks of treatment with a physical medicine practitioner (DC, DO who specializes in manipulation, MD/DO who is a physical medicine and rehabilitation specialist, PT, OT) should be performed on a decreasing frequency. The referring physician shall be provided progress reports at 2-week intervals. Treatment should cease if two weeks pass without significant documented functional improvement. It is important that the injured worker continue to work and perform his or her activities of daily living during this therapy. Modified duty or work reassignment is appropriate during treatment.

b. Ambulatory Surgery.

1. Indications A. Unresponsive or progression of symptoms in the face of non-operative treatment; objective signs.

B. Thenar atrophy or objective impairment of sensibility (widened two-point discrimination or diminished light touch).

C. Intolerable numbness and pain.

D. Mass or deformity in carpal tunnel.

2. Treatment Options A. The operative treatment usually includes minimal invasive type of surgery vs. open type of surgery, and is indicated according to the condition of the patient.

B. In some of the severe CTS cases, the surgeon may wish to seek an examination by another physician in order to determine if the injured worker is an appropriate candidate for recovery and return to work.

3. Home Health Care. When self-care is compromised during the early post-operative period, homemaker services may be required in some instances. Examples: opposite hand amputation or limiting injury.

4. Physical Rehabilitation.

A. Brief post-operative splinting, optional.

B. Finger and wrist range of motion.

C. Scar massage after sutures removed.

D. Grip and pinch strengthening.

E. Range of motion exercises of affected extremity.

F. Progressive activity reintroduction.

G. Physical medicine, if indicated, should be limited to six weeks.

5. Supporting Evidence.

A. Carpal tunnel release relieved pain and paresthesia in up to 90% of patients with correct diagnosis.

B. Significant pre-operative median nerve involvement, concurrent medical conditions and/or inability to modify aggravating exposures may affect post-operative functional recovery.

c. In-Patient Treatment.

1. Inpatient Treatment.

A. Rare.

B. Associated with other trauma or condition, i.e. crush injury, burns, etc.

2. Indications for Admission.

A. Compartment syndrome of forearm.

B. Other serious medical conditions which increase surgical anesthetic risks.

C. Complication at time of operative procedure.

D. Treatment options: same as for ambulatory patient.

E. Indications for discharge: medical condition stabilized.

F. Home health care: same as for ambulatory patient.

G. Rehabilitation: same as for ambulatory patient.

d. Estimated Duration of Care 1. Non-operative Treatment A. Activity modification may be indicated.

B. Depending on objective findings and past duration of symptoms and as outlined in the Presley Reed Guide referenced in this Rule.

2. Operative Treatment A. Consistent with global guidelines and as outlined in the Presley Reed Guide referenced in this Rule.

B. Three month follow-up unless there are complicating factors.

e. Anticipated Outcome.

1. Improved sensory and/or motor and/or autonomic function.

2. Elimination of paresthesia.

3. Lessening of pain.

4. In severe carpal tunnel syndrome cases, complete relief of the symptoms is usually not obtained. The surgery is performed to stop progression of the nerve damage or to delay progression of damage already present in the form of nerve fibrosis and vascular changes.

f. Modifiers 1. Pregnant and nursing women usually have decreased or resolved symptoms shortly after delivery or cessation of lactation, but persistent symptoms may require surgical release.

2. Age and gender are not modifiers.

3. Co-existent neurological or systemic disorder, i.e. diabetes, thyroid dysfunction, amyloidosis, etc., may make symptoms more severe and less likely to fully resolve following treatment.

g. Cold laser is an experimental and unproven therapy. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not pay for such treatment.

41.9. Rehabilitation a. Keeping Workers on the Job.

1. Workers generally are in a more positive psychosocial, motivational and financial mode when they continue to work. These factors impact significantly on the rehabilitation outcome.

2. Barring a clear medical contraindication, if the employer can provide suitable reasonable accommodations based upon restrictions recommended by the physician due to the compensable medical condition, the injured worker should continue to work during the recovery process and be released to return to such work as soon as possible when temporary disability is unavoidable.

b. The Work Release 1. Return to work may be initiated via two paths, starting with the physician’s work release or with a proposal from the employer or a qualified rehabilitation professional.

2. In either case, the release must be as specific as possible so the employer and patient clearly understand what is expected. The physician should address:

A. Physical restrictions, time restrictions (hours per day and/or week and duration of the restriction).

B. Pacing restrictions.

C. Break requirements (frequency and purpose, such as for rest from certain activities, icing, warm-up exercise, self-massage, etc.).

D. Recommended job site accommodations (such as workstation height or set-up) or ergonomic devices (such as anti-vibration tool wraps).

3. When the employer or a qualified rehabilitation professional offers a return to work proposal, the attending physician should expect to be provided:

A. A functional job analysis with which to make an informed decision regarding the work release. The job analysis must thoroughly describe job duties, physical demands (strength and production/work pace), tools used and environment.

B. Assurance that the employer (line supervisors and co-workers, not just human resources personnel) will support the worker in the restricted or alternate duty return to work.

C. A rehabilitation plan signed by the employer, injured worker and a qualified rehabilitation professional when restricted or alternate duty (part-time or full-time) is to be approved. This plan should describe the accommodations being offered and the time frame for which they will be available.

c. Career Changes. Injured workers with significant permanent upper extremity residual impairment will frequently need a permanent change of vocations.

d. The provisions of Section 41.9 may be used to govern the rehabilitation processes of injuries other than carpal tunnel syndrome as appropriate.

W. Va. Code R. § 85-20-42 Treatment Guidelines: Injuries to the Knee

42.1. The vast majority of knee injuries result from direct trauma to the joint or are caused by torsional or angulatory forces. These injuries vary in severity from simple ligamentous strains to complex injuries involving ligamentous disruption with meniscal damage and associated fracture. This guideline is designed to guide the practitioner in the appropriate management of these injuries and to establish a logical sequence for the diagnostic evaluation and treatment of the more complex injuries.In general, knee injuries should be referred for orthopedic consultation and/or treatment under the following circumstances:

a. Failure of a presumed knee sprain to show progressive resolution and respond to appropriate conservative treatment in a period of three (3) weeks;

b. Radiographic evidence of an associated fracture;

c. The initial presence of a tense hemarthrosis or the development of a recurrent hemarthrosis;

d. An acutely locked or an acutely dislocated knee;

e. Clinical evidence of gross ligamentous instability; and f. A presumed diagnosis of a meniscal injury.

W. Va. Code R. § 85-20-43 Treatment Guidelines: Knee Sprains

43.1. These are common injuries resulting from the application of a torsional or angulatory force to the knee and are characterized by pain, mild swelling, localized tenderness, increased discomfort or weight bearing, negative x-rays, and no clinical evidence of instability.

a. The appropriate diagnostic tests.

1. Plain x-rays.

43.2. The appropriate and inappropriate treatment is as follows:

a. Nonoperative treatment.

1. Medications to include nonnarcotic analgesics and nonsteroidal anti-inflammatory drugs;

2. Application of ice, compression dressings, and temporary partial restriction of weight bearing;

3. Physical modalities and/or rehabilitative procedures;

4. Duration of care - estimated duration of care is three weeks, not to exceed six weeks; and 5. Anticipated result - resolution of symptoms and resumption of normal activities.

b. Inappropriate treatment:

1. Surgery;

2. Inpatient; and 3. Greater than three weeks without consultation.

W. Va. Code R. § 85-20-44 Treatment Guidelines: Meniscal Injuries

44.1. The mechanism of injury is similar to that for knee sprains but symptoms of pain and swelling fail to resolve in the anticipated period of time and the symptoms frequently include a sensation of “catching or giving away” of the joint and a history of locking of the joint may be elicited.

Clinical findings may include joint space tenderness, a mild effusion and restricted range-of-motion and positive McMurray’s sign.

44.2. The appropriate diagnostic tests are as follows:

a. Plain x-rays;

b. Arthrocentesis;

c. MRI;

d. Arthrogram; and e. Diagnostic arthroscopy.

44.3. The appropriate treatment is as follows:

a. Outpatient/nonoperative treatment.

1. Short-term use of nonsteroidal anti-inflammatory drugs in conjunction with an arthrocentesis and short-term immobilization with a period of limited weight bearing;

2. Physical modalities and/or rehabilitative procedures.

b. Outpatient/operative treatment.

1. Options include arthroscopic meniscectomy and/or arthroscopic meniscal repair; and 2. Physical therapy/rehabilitation.

c. Inpatient/nonoperative treatment not indicated.

d. Inpatient operative treatment - The reasons for admission for surgical treatment may include the presence of associated medical conditions, a concomitant knee injury such as a fracture of the tibial plateau or a major ligamentous disruption, or the presence of other injuries which require inpatient treatment.

44.4. The duration of treatment may vary up to three (3) months. The injured worker’s age and pre-existence of arthritic changes within the joint will influence the duration of treatment.

44.5. The anticipated outcome is as follows:

a. Improved knee function with minimal residual symptoms; and b. Possible predisposition to the development of traumatic arthrosis of the knee.

W. Va. Code R. § 85-20-45 Treatment Guidelines: Foot and Ankle Injuries

45.1. Injuries to the foot and ankle usually relate to a specific traumatic event and have a predictable clinical course depending on the severity index of the initial injury. For simplicity, injuries will be discussed relative to the anatomic region of the foot and ankle (ankle, hind foot, midfoot, forefoot or phalanges).

45.2. The appropriate diagnostic criteria is as follows:

a. Pertinent historical and physical findings:

1. Onset of pain and/or swelling is related to a single event, either a twisting injury, fall or direct blunt trauma. The degree of the injury can be judged quickly by determining which one can bear weight and the degree of initial swelling. The more severe injuries will have greater swelling, inability to bear weight, and may have obvious deformity.

45.3. Diagnostic test and examination considerations are as follows:

a. If differentiation between a soft tissue ligamentous injury and a fracture is required, x-rays in several planes are appropriate in all cases;

b. CT scans may be indicated in hind foot injuries to define subtle fractures, tarsal coalitions or the degree of displacement in three planes in acute injuries;

c. Bone scans are occasionally indicated in long standing pain problems to rule out stress fracture or inflammatory causes of foot pain (after four weeks of pain with normal X-rays).

d. MRI rarely indicated - should require specialty consultation; and e. EMG and vascular studies (non-invasive arterial perfusion or arteriography at the request of the specialist).

f. Inappropriate diagnostic tests:

1. Thermogram.

g. Indications for specialty referral:

1. Displaced fractures;

2. Neurovascular compromise; and 3. Pain and swelling greater than three weeks.

45.4. The appropriate treatment is as follows:

a. Non-operative.

1. Sprains (No fracture seen on x-ray)

A. Rest, ice compression and elevation(RICE);

B. Crutches and splinting (one through three days);

C. Early mobilization as pain allows. This may involve active supervised physical therapy;

D. Usual course - several days to three weeks; and E. Referral to specialist required if no improvement by three weeks.

2. Fractures.

A. Simple non-displaced:

1. Ankle -- Specialty referral - Will require special splinting or casting for three to six weeks and may require an additional two to four weeks of physical therapy rehabilitation.

2. Hind foot - Same as ankle.

3. Midfoot - Same as ankle but course is usually two to four weeks shorter.

4. Forefoot - Specialty referral not required special shoe or cast may be necessary. Usually resolved in three to six weeks.

5. Phalanges - Same as forefoot, simple taping and/or modified shoe usually all that are necessary.

6. Displaced fractures. Specialty referral is mandatory. Non-operative treatment requires casting for three to six weeks followed by up to four weeks of rehabilitation.

b. Operative. All operative decisions require specialty referral.

1. Sprains. Indicated when there is a complete dislocation/ subluxation without a fracture anywhere in the ankle, hindfoot, or midfoot. May be indicated in the forefoot.

2. Fractures.

A. Simple - may be indicated in ankle.

B. Displaced - Usually indicated in ankle, hindfoot, midfoot, and forefoot. Displaced phalange fractures can sometimes be treated non-operatively.

W. Va. Code R. § 85-20-46 Treatment Guidelines: Physical Medicine

46.1. Principles for use of physical medicine:

a. Physical medicine should be initiated as early as the day of injury; indications for and focus of (early) intervention include:

1. Acute management of pain and spasms;

2. Use of passive modalities as adjunct to active treatment;

3. Manual therapy for restoring joint function;

4. Instruction in range of motion and stretching exercises;

5. Assessment of return to work readiness and identifying necessary work modifications;

6. Injured worker education in healing process, body mechanics, proper resting positions, and home treatment program; and 7. Time frames may range from one visit to daily visits in accordance with applicable treatment guidelines.

b. Evaluations and treatments authorized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, must be provided by professionals licensed to perform such activities.

c. Initiation of treatment may not be indicated when:

1. Few objectively measured deficits are found on evaluations;

2. Subjective complaints of pain are the only finding;

3. Pain behaviors are interfering with the return to work process; and 4. Injured worker is not compliant with the treatment plan.

d. Inappropriate and medically unsupported treatment is the exclusive use of passive modalities throughout the course of treatment.

e. Exercise programs are progressively increased to include strengthening and conditioning exercises. Any work simulation activities (also gradually increased) should focus on essential work tasks (pushing, pulling, lifting, etc.). Time frames may range from 1 to 4 hours per day, 3 to 5 days per week in accordance with above treatment guidelines.

f. Progress reports to the referring physician, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and the employer should identify continuing complaints, progress made, further rehabilitation needs, and level of return to work readiness. An injured worker may continue in therapy, if indicated, after return to work in accordance with applicable treatment guidelines.

46.2. Treatment limitations. Physical medicine treatment shall not exceed 10 visits in the initial 14 days and must decrease in frequency thereafter. In no case shall the treatment exceed 16 visits in the initial 30 days or 12 visits in the second 30 days.

46.3. If physical medicine care continues to the 30th day and the injured worker has not returned to work, the treating physician may arrange a consultation for a second opinion. Reimbursement for care past the 45th day shall be disallowed unless the consulting physician recommends further care.

46.4. If care continues to the 30th day and the injured worker lost no time or is back to work, shows significant documented functional and clinical signs of improvement, and has not reached maximum medical improvement, continued care is appropriate. Such care shall not exceed the 60th day unless otherwise expressly authorized by this Rule.

46.5. Injured workers with complicating factors which have prevented a return to work by the 60th day require active case management by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, within the parameters of this Rule. Independent medical evaluator guidance may be requested by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in its sole discretion.

46.6. Treatment beyond 28 dates of service (within 60 days) is limited to a maximum of 5 treatments over one additional 30-day period and requires Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, authorization. Authorization requires the worker has a history of surgery or fracture in the involved area, and either 1) the worker has returned to work or 2) modified work is not available.

46.7. Workers who have returned to work, reached maximum medical improvement and experience flare-ups of their injuries, due to job-related activities, may be treated a maximum of 4 times over a 2-week period. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will reimburse a maximum of 12 treatments for work related flare-ups within 14 months of the date of injury.

46.8. Reimbursement shall be disallowed for any treatment rendered after the injured worker reaches maximum medical improvement unless otherwise expressly authorized by this Rule.

W. Va. Code R. § 85-20-47 Treatment Guidelines, Protocols and Procedures for Performing Audiological Examinations and Evaluations in Workers’ Compensation Claims for Noise-Induced Hearing Loss

47.1. Only audiometric test results obtained by an audiologist having a certificate of clinical competence in audiology (CCC-A) or a West Virginia audiology licensure are acceptable for purposes of awarding compensation. An audiogram performed at the request of any physician may be utilized by the injured worker for the purpose of completing the workers’ compensation application form. However, only physicians who are qualified otologists or otolaryngologists may interpret the results of audiograms in assessing the degree of the injured worker’s noise-induced hearing loss impairment for the purpose of determining the percentages of the injured worker’s whole person impairment, if any.

47.2. A physician examining and evaluating an injured worker in a noise-induced hearing loss claim must consider the injured worker’s medical and occupational history, as well as available audiograms, in determining the etiology of the hearing loss. It is not necessary to use a uniform brand and model of audiometer.

For Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, standards, the audiologist shall adopt the ANSI Guidelines and perform an annual exhaustive calibration. The audiologist should also perform a daily listening check.

47.3. Establishing a definitive margin of error: Two audiograms are said to be in acceptable test-retest variability when the total of four frequencies (500, 1000, 2000, 3000 Hz) is 15 decibels or less and the audiometric curves are similar. Because the two audiograms are technically identical and one cannot be chosen over the other, the calculation of whole person impairment will be based on the audiogram that yields the highest degree of impairment for the injured worker.

a. If two audiograms are both rated “good”, and differ by more than the established margin of error, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall arrange for a third independent evaluation by an otologist or otolaryngologist.

b. The two audiograms that are within an acceptable test/retest variability should be used.

47.4. The audiologist shall be required to perform the following specific reliability and validity checks during the course of an audiogram:

a. Speech Reception Threshold (SRT)/Pure Tone Average Comparison: SRT should be within 10 decibels of the best two frequency average for the pure tone thresholds of 500, 1000, 2000 Hz.

b. Both ascending and descending thresholds should be obtained at 1000 Hz for each ear. The difference should be no greater than 5 decibels.

c. Reliability should be rated: good, fair, poor.

d. Certified and/or licensed audiologists must perform the audiogram.

e. The four validity and reliability checks set forth above must be documented on the Workers Compensation form and the examiner must initial his or her findings on the forms.

47.5. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will inform all physicians evaluating noise-induced hearing loss injured workers on the Commission’s, Insurance Commissioner’s, private carrier’s or self-insured employer’s, whichever is applicable, behalf that standard air conduction and bone conduction testing, speech reception threshold, speech discrimination, tympanometry and acoustic reflex testing must routinely be performed as a part of audiometric evaluation. Other testing, including otoacoustic emission testing, may be required at the discretion of the otologist/otolaryngologist. If the required audiometric tests have not been done, the report is unacceptable and the physician will not be compensated. W. Va. Code §23-4-8.

47.6. When a sensorineural hearing loss is present it may be the result of noise induced hearing loss and/or other disease processes. The medical evaluator should consider all causes of sensorineural hearing loss. When a conductive loss is present, the bone conduction levels will show the purist hearing an injured worker could have as a result of noise induced hearing loss.

47.7. The audiologist shall perform speech discrimination (word recognition) testing using W-22 word lists. Both live voice and recorded presentation methods for testing speech discrimination are acceptable; each method has its advantages. The audiologist should use the method that provides the best representation of the injured worker’s true speech discrimination score.

The otologist or otolaryngologist interpreting the speech discrimination results shall use the formula set forth in W. Va. Code §23-4-6b, to calculate the injured worker’s impairment rating.

47.8. Occupational noise induced hearing loss (NIHL) typically starts in the high frequencies; usually 3000, 4000 or 6000 Hz. With progression, these frequencies worsen and the hearing loss extends to the lower frequencies; (2000 and 1000 Hz). Even with progression, however, the audiometric pattern remains one that descends from the low frequencies to the high frequencies, sometimes with recovery at 6000 or 8000 Hz. Occupational NIHL does not cause an ascending audiometric pattern (where the low frequencies would be worse than the high frequencies). A flat audiometric curve is also not typical of an etiology of solely occupational NIHL. If an audiogram presents a pattern that is atypical of an occupational NIHL pattern, then the physician interpreting the audiogram should consider causes other than occupational noise exposure in determining the hearing loss etiology. If the otologist/otolaryngologist determines that an injured worker’s hearing loss is not all noise induced hearing loss, he or she should estimate the true noise induced hearing loss thresholds and explain his or her calculations on the basis of medical and audiological findings.

47.9. When an injured worker has been exposed to steady state noise, his or her NIHL will usually be symmetrical between both ears. If the injured worker has a hearing loss that is asymmetric then the evaluating physician should consider all causes for hearing loss, including nonoccupational noise, trauma or disease processes and whether there is more noise exposure on one side than the other.

47.10. If a physician determines that an injured worker’s hearing loss is the result of occupational noise exposure, the total hearing loss impairment rating shall be calculated pursuant to the formula set forth in W. Va. Code 23-4-6b.

47.11. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will reimburse for hearing aids when 5% or greater permanent industrial hearing loss impairment has been diagnosed. The recommendation for the hearing aid must be based on the evaluation of an otologist or a otolaryngologist for reimbursement. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall retain sole discretion to select the hearing aid most appropriate for treatment.

W. Va. Code R. § 85-20-48 Reserved

W. Va. Code R. § 85-20-49 Treatment Guidelines: Multi- Disciplinary Pain Management

49.1. It is now well accepted that chronic pain treatment is a complex problem that involves physical, emotional and behavioral components. Chronic pain and treatment therefore, including multidisciplinary interventions, is only compensable if specifically diagnosed as caused by an injury received in the course of and resulting from employment.

49.2. Multidisciplinary treatment for chronic pain and related disability has been more rigorously examined than most other treatments used with chronic pain. There is strong evidence for the importance of the behavioral/psychological component of treatment in making meaningful changes in pain intensity, functional status and emotional distress.

49.3. The best predictors of disability and response to multidisciplinary treatment may not be a function of physical or medical variables; instead, psychological variables may be the best predictors in certain cases. Additionally, assessment of psychosocial “risk factors” for chronic disability done shortly after injury can lead to more effective management by identifying which patients are likely to benefit from multidisciplinary treatment.

49.4. Chronic Pain Syndrome: Chronic Pain Syndrome patients are defined by the following criteria: a) Reports of persistent (i.e., at least four months duration) pain, which may be consistent with or significantly out of proportion to physical findings; b). Demonstrates or has demonstrated a progressive deterioration in ability to function at home, socially and at work; c) Shows or has shown a progressive increase in health care utilization (such as repeated physical evaluations, diagnostic tests, requests for pain medications and/or invasive medical procedures); d) Demonstrates mood disturbance; and e) May exhibit clinically significant anger, frustration and/or hostility.

49.5. Program Guidelines:

a. Program Goal: To address behavioral barriers, which inhibit return to work while increasing physical function in a protocol-based rehabilitation program.

b. If an injured worker is diagnosed with Chronic Pain Syndrome directly related to a compensable injury, any authorized pain management program shall contain the following objectives and guidelines.

1. To successfully return the patient to pre-injury work. If this goal is not realistically obtainable, then the goal is to have the patient demonstrate specific alternative work capabilities.

2. To develop work-related skills with work simulation activities.

3. To develop strength, endurance, movement, flexibility and motor control related to performance of specific vocational and avocational goals.

4. To identify and improve management of psychosocial barriers to facilitate return to work.

5. To demonstrate increased responsibility for their condition through the use of self-management techniques related to pain and associated psychological symptoms. This should be done with minimal ongoing medical intervention (decrease dependence on health care system).

6. To demonstrate understanding safe job performance, injury prevention and physical and psychosocial threats to relapse.

c. Program Direction: Responsibility should be assigned for program direction and for medical direction. The same individual may be responsible for both functions. Program direction need not be provided by a physician. Program Director may be an Allied Health Professional with an advance degree and state licensure appropriate to degree. Program Director must have at least one year’s experience in interdisciplinary rehabilitation and participate in annual continuing education in this field. The participating physician must be board certified or eligible with annual continuing education in this field.

d. For an injured worker to be authorized to participate in a pain management program, the injured worker must demonstrate: 1) At least three months of ongoing pain-related temporary total disability or inability to safely return to work; 2) The need for such a program must be related to the compensable injury and subsequent consequences.; 3)The patient should be able to express a vocational goal whether related to return to work or retraining for return to work; and 4) Presence of psychosocial barriers to rehabilitation (such as depression, anxiety, fear/avoidance behaviors, poor coping/adaptation skills, anger).

e. Pain management program shall not be authorized if any of the following factors exist: 1) Presence of concurrent noncompensable health or mental health condition that would prohibit full understanding and participation in the program; 2) Medical instability that may warrant continued medical intervention (such as surgery, etc.); or 3) Presence of a substance addiction/dependence that prohibits safe and effective participation in the program.

f. Scope of Service/Program Organization: CPS patients are best treated in an integrated interdisciplinary program. The program needs to maximize continuity of care by employing a coordinated group of health care professionals (i.e., physicians, psychologists, physical and occupational therapists, vocational evaluators, counselors and specialty consultants) who evaluate and treat the patient as a team.

g. Evaluation: The treatment plan is developed through an interdisciplinary evaluation with a recommendation for either admission into the occupational rehabilitation program (ORP) or appropriate alternative treatment. The evaluation should consist of the following: 1) Review of records; 2) Quantitative evaluation by physical therapist to determine current level of functioning and anticipated outcome; 3) Psychological evaluation by licensed psychologist to identify behavioral barriers to return to work and to determine need for psychological intervention, if necessary; and 4) Medical evaluation by a licensed physician to identify any medical barriers to participation and to clear patient for physical restoration activity.

h. Treatment: Individual treatment plan will address the following:

1. Frequency and Intensity of the program: The frequency, intensity and duration of the program should be sufficient to demonstrate improvement in the following areas: work capabilities, strength, stamina and psychosocial barriers to improved functioning (may include fear avoidance, depression, anxiety, coping strategies, anger…) In order to achieve these goals through an interdisciplinary approach and simulate a typical work day, this treatment requires a minimum of five (5) and a maximum of eight (8) hours per day, five (5) days per week. Daily attendance is therefore imperative and integrated into the goals of the program (see section 7). Provision of services will include both daily behavioral/psychological and physical restoration activities. Effective outcome from interdisciplinary treatment is usually accomplished within a maximum of 20 treatment days. Thus, this 20 treatment-day upper limit for intervention with CPS patients is recommended;

2. Extensions To Treatment: Occasionally, there may be justifications for extended treatment beyond the 20-day program. Any such extension needs to be documented, time-limited and monitored on a case-by-case basis. The following should apply to potential extension situations: 1) The patient has clearly shown significant and objectively documented progress within the initial 20-day treatment protocol; 2) Further functional gains that increase the patient’s likelihood to return to work are likely within the extension period; 3) Extension periods should be time limited and should not exceed 10 treatment days.

i. Treatment Team Members:

1. Services should be provided by a coordinated interdisciplinary team that includes a core team of individuals who are specifically assigned to the program. The following disciplines, and others as may be designated by the program director, shall constitute the core treatment team: participating physician, clinical psychologist and physical therapist.

2. Dependent on the needs of the patient, the following practitioners may also be involved: case manager (internal or external), psychiatrist, nurse, occupational therapist, vocational specialist.

j. Services Provided: Services shall include, but not be limited to: 1) Medical assessment; 2) Weekly staff meetings that include the core treatment team (or their assigned representatives).; 3) Ongoing reappraisal of each participant’s clinical and functional work status; 4) Performance of appropriate medical diagnostic and treatment procedures; 5) Providing information needed to assist participant to return to work; 6) The practice, modification and instruction of component work tasks through real or simulated work; 7) The development of strength and endurance of the participant related to the performance of work tasks; 8) education to teach safe job performance and prevent re-injury; 9) Promotion of self-management strategies; and 10) The development of attitudes and behaviors that will improve the ability of the participant to return to work or benefit from other rehabilitation.

k. Space: Services consistent with the needs of the program shall be provided in settings as follows: 1) A physical therapy setting that allows for conditioning and strength training. An area that supports a work-related treatment environment, which would include work simulation activities, is also needed; 2) Classroom and conference space is required for individual counseling and educational sessions.; and 3) The program may be provided as a private or group practice, hospital based program or freestanding program. All services provided should ideally be performed at a single campus setting. Services should not be performed at more than two locations within a given treatment day.

l. Documentation:

1. Whenever possible, pain management programs shall offer outpatient rather than inpatient services and clear and convincing documentation proving that outpatient treatment is inappropriate in a particular claim is required before inpatient treatment can be authorized. Documentation of interdisciplinary evaluation prior to admission shall include: a) A quantitative report by a licensed physical therapist that documents current level of functioning and anticipated outcome; b) A psychological report by a licensed psychologist that documents behavioral and/or emotional barriers to return to work and identifies the need for psychological intervention (if necessary); c) Medical report that documents any barriers to participation in the program and gives medical clearance for the patients participation in physical restoration activity; and e) Post-evaluation summary report that documents specific treatment recommendations.

2. Treatment documentation should include at a minimum: a) Daily progress notes; b) Weekly Staffing Summaries which document progress toward goals, current functional status, and newly identified barriers to participation; and c) Discharge Summary which documents progress achieved in functional, work-related goals, work capability at discharge, progress in addressing psychological barriers to improved function, medical status, and recommendations. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will determine the standards by which this will be reported and the timeframe for such reporting.

m. Discharge Criteria: Discharge of a participant from an interdisciplinary rehabilitation program shall be based upon the following: 1) Goals of the program have been achieved; 2) The injured worker has failed to fully participate and/or comply with program requirements; 3) The physician of record has discontinued the program for the participant; 4) A condition has arisen directly related to the compensable injury requiring further medical or other health care intervention, not present at initiation of the program.; 5) Prior to completion of the program, it is determined by the service provider or attending physician that the client will be unable to accomplish the goals of the program. This determination can be based upon a combination of objective and subjective criteria; and 6) The participant has excessive absences.

W. Va. Code R. § 85-20-50 Treatment Guidelines: Interventional Management of Chronic Pain

Definitions:

As used in this exempt legislative rule, the following terms have the stated meanings unless the context of a specific use clearly indicates another meaning is intended.

50.1. “Acute pain” means pain experienced as the result of injury, disease, or operative procedure. Treatment usually consists of medications, surgical repair, and/or physical medicine therapies. Care may be provided in the office, clinic, or hospital setting.

50.2. “Bier block” means the instillation of medication into the venous system of a limb for anesthetic or therapeutic purposes; venous circulation is occluded with a tourniquet to retain medication in the veins of the limb.

50.3. “Chronic pain” means pain lasting more than three months. The cause of the pain is often unknown and may not be linked to an actual physiological event. Chronic pain complaints are usually accompanied by other psychophysiological disorders such as depression, weight gain or loss, sleep disorder and digestive disorder. A nurse case manager must coordinate care for claimants experiencing chronic pain, including intervention by a pain management specialist early in the treatment process and involvement of other treatment modalities and consultative specialists as needed.

50.4. “Interdisciplinary” means including representation from two or more health care fields.

50.5. “Medical Services Unit” or “Office of Medical Services” means a group of Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, personnel designated to deal with health care issues; such personnel may be supplemented with health care personnel providing services on a contract or other basis.

50.6. “Nerve block” means injection of a local anesthetic medication in proximity to a nerve or nerve plexus to block nerve transmission.

50.7. “Nurse Case Manager” means a duly licensed registered professional nurse authorized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to coordinate health care and rehabilitative services for injured workers.

50.8. “Pain” refers to a complex unpleasant sensory and emotional experience associated with actual or potential tissue damage or which may just be a subjective experience described in terms of such damage.

50.9. “Pain management specialist” means a licensed physician with specialized training and experience in the diagnosis and/or treatment of chronic pain.

50.10. “Steady dose” refers to the amount and frequency of pain relief medication that is required to maintain optimum pain relief, once the dosage of such medication has become fixed or nearly fixed in amount and frequency.

50.11. “Trigger point injection” means placement of a needle into a myofascial space with or without injection of medication.

General:

50.12. All practitioners who treat chronic pain need to address goals in three major life areas: physical; social; and psychological.

a. Physical goals include: analgesia, early mobility, functional restoration and increased exercise tolerance, strength and range of motion.

b. Social goals include: a positive expectation for recovery from family and support systems; avoiding identification with disabled family prototypes; resistance to the negative reinforcement from interested other parties; and recognition of the deleterious effects of the disability lifestyle.

c. Psychological goals include: dealing with grief and loss over altered function and coping with chronic distress and a changed lifestyle; maintaining a positive attitude toward recovery; focusing motivation; appreciating primary, secondary and tertiary gains; and obtaining diagnosis and treatment for any psychiatric diagnosis.

50.13. Emergency conditions such as Complex Regional Pain Syndrome (Reflex Sympathetic Dystrophy) may require immediate consultation with a pain specialist and initiation of treatment without delay.

50.14. In contusion and sprain/strain cases, and in non-surgical disk cases, claimants who are being considered for injections for the treatment of chronic pain, but who have not had a trial of physical medicine, including exercise and/or manipulation, will be required to be evaluated by a physical medicine practitioner or other independent medical evaluator. The physical medicine practitioner or other evaluator will determine whether a 30-day regimen of physical medicine in conjunction with initiation of chronic pain therapy is likely to provide full or partial relief prior to initiating a series of injections.

50.15. When chronic pain patients do not respond to initial specialist-directed efforts, a nurse case manager may be assigned to coordinate the pain management effort. The nurse case manager’s or other case manager’s report will include an assessment as to the benefits of chronic pain management, such as the likelihood that the claimant will be able to return to work. A psychiatric or psychological evaluation must be part of the assessment process. Psychiatric conditions must be evaluated and under treatment as indicated before use of long-term narcotics or implantable devices will be authorized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

50.16. Claimants who have injuries greater than six (6) months old with continued symptoms, and who are not actively being treated for chronic pain may be eligible for an additional six (6) months further treatment or management of pain, only if an independent medical evaluator selected by the injured worker’s treating physician agrees that the recommended treatment, including pain management, is reasonable, necessary, related to the compensable injury, and likely to be successful in substantially reducing the injured worker’s symptoms.

Injections:

The following criteria must be met before the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will authorize the use of injections by the pain management specialist form the treatment plan:

50.17. The Claim file must document objective physical signs and subjective symptoms which support the use of the proposed procedure.

50.18. When performing a “series” of injections, there must be documentation of measurable physical, psychological or vocational improvement before performing the next injection. Treatment of low back pain requires that a complete Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, back form be in the injured worker’s file.

50.19. Active, not passive, physical medicine and home exercises prescribed after documented demonstration to the prescribing provider are to be a part of any injection or procedure-based treatment plan. A report from the provider must be sent to the physician and a copy to the claims manager after every fourth visit. If physical medicine is not recommended, the physician must explain why it is not going to be used. Pain management shall be terminated if the injured worker fails to fully cooperate with the required exercise program.

50.20. If a surgical spine lesion exists that shows no immediate neurologic danger, cervical epidural steroids may be considered prior to surgery. The surgeon and the pain management specialists should work collaboratively in such cases. If epidural injections fail to provide relief or if new neurological deficits develop, surgical, evaluation should be scheduled promptly. The treating physician is responsible for referring any suspected surgical lesion promptly to a surgeon.

50.21. The treatments under each of the following categories are deemed appropriate. The order in which the treatments within each category are listed is not controlling of the treatment plan except as indicated.

Head and Neck Pain:

50.22. Peripheral Nerves, including occipital, greater and lesser, auricular, supraorbital, maxillary branch of V, mandibular branch of V, and others.

a. Six (6) blocks over three (3) months in office, or in ambulatory clinic if fluoroscopy is required;

b. Neurolysis/ Denervation by cryotherapy, chemical means, radiofrequency, or surgical intervention if good response not substained.

50.23. Facial Pain Sympathetically maintained a. Sphenopalatine ganglion block-six (6) blocks over three (3) months;

b. Stellate ganglion block-six (6) blocks over three (3) months

50.24. Intrathecal Opioids- if all other conservative treatments fail a. A trial is required. Refer to specific guidelines.

b. A second opinion is required before implant.

50.25. Myofascial Pain a. Trigger point injections, no more than six (6) points or no more than six (6) occasions in three (3) months. If authorization for trigger point injections are requested more than twice in 1 year or 4 cycles total, the claim may be assigned a nurse case manager. Authorization is at the discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, after review of the case and focus on the claimant’s work record.

b. Home exercise and physical medicine is required in combination with trigger point injections.

50.26. Cervical Facet Mediated Pain.

a. No more than 4 injections over six (6) months.

b. Physical medicine is required in combination with injections.

c. Neurolysis/ Denervation by cryotherapy, chemical means, radiofrequency or surgical intervention if good response to anesthetic injections not sustained.

50.27. Cervical Radiculopathy a. Cervical epidural steroids, no more than four (4) injections in a six (6) month period, if surgery in accordance with the appropriate Workers’ Compensation treatment guideline is not a medically viable option or if surgery has been attempted and failed to provide relief;

b. Cervical epidural infusion c. If physical medicine alone fails in 30 days, suprascapular nerve block should be considered.

d. Spinal cord stimulation if other treatments fail. See specific guidelines.

Shoulder And Upper Extremity:

50.28. Adhesive Capsulitis.

a. Physical medicine alone should be used initially;

b. If physical medicine alone fails, distention by injection or a local nerve block may be performed combined with a follow-up exercise program.

50.29. Subdeltoid Bursitis, Olecranon Bursitis- No more than three (3) injections over six (6) months.

50.30. Epicondylitis - No more than three (3) injections over six (6) months.

50.31. Myofascial Pain a. Trigger point injections, no more than six (6) points or no more than six (6) occasions in three (3) months;

b. If trigger point injections need to be repeated more than twice in (one) 1 year or for more than four (4) cycles total, a nurse case manager will be assigned to the claim. Authorization is at the discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

c. Home exercise and physical medicine is required in combination with trigger point injections.

50.32. Phantom pain or stump pain.

a. Stellate ganglion block, up to six (6) times over a three (3) month period;

b. Cervical epidural catheter with infusion, for not more than four (4) weeks;

c. Spinal cord stimulation per specific guidelines if the above therapies fail.

50.33. Complex regional pain syndrome (reflex sympathetic dystrophy)

a. Referral to specialist made immediately upon diagnosis;

b. Cervical epidural infusion in conjunction with a program of physical medicine therapy no more than four (4) weeks duration;

c. Spinal cord stimulation in accordance with specific guidelines;

d. Stellate ganglion block, up to twelve (12) times during a three (3) month period;

e. Bier block, up to six (6) times over a three (3) month period.

50.34. Peripheral nerve injury a. Nerve block, up to six (6) times over a three (3) month period;

b. Bier blocks up to six (6) times over a three (3) month period;

c. Cervical epidural infusion with physical medicine therapy of no more than four (4) weeks duration;

d. Spinal cord stimulation in accordance with specific guidelines.

50.35. Carpal Tunnel Syndrome a. Nerve block up to six (6) times over a three (3) month period, if surgery in accordance with the Commission’s, Insurance Commissioner’s, private carrier’s or self-insured employer’s, whichever is applicable, treatment guideline is not a medically viable option or if surgery has been attempted and failed to provide relief.

50.36. Other Causes of Extremity Pain a. Treatment on a case by case basis, subject to review by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

Thoracic and Chest Wall Pain:

50.37. Thoracic Disc Syndrome a. Thoracic epidural steroids injection, up to four (4) times over six (6) months, if surgery is not a medically viable option, in the sole discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, or if surgery has been attempted and failed to provide relief.

b. Thoracic epidural infusion, accompanied by physical medicine if epidural steroids fail.

50.38. Intercostal Neuralgia a. Intercostal nerve block with local steroids, up to four (4) times over six (6) months;

b. Thoracic epidural steroids, up to four (4) times over six (6) months;

c. Neurolytic intercostal injection if good but nonsustained improvement with steroid injections;

d. Spinal cord stimulation as per specific guidelines.

50.39. Costochondritis a. Injection of joint, up to four (4) times over six (6) months;

b. Concurrent treatment by physical medicine is required.

Abdominal Pain:

50.40. Traumatic pancreatitis a. Celiac plexus blocks, up to six (6) times over six (6) months;

b. Neurolytic celiac plexus blocks if a good but unsustained response results from celiac plexus blocks with local anesthetic;

c. Intrathecal opioids. See specific guide lines.

50.41. Post Hernia Nerve Entrapment-Injection of involved nerve, up to six (6) times over three (3) month period

50.42. Peripheral nerve involvement a. Injection of ilioinguinal, genitofemoral, iliohypogastric, or other peripheral nerves, up to six (6) times over (3) months b. Spinal cord stimulation in accordance with specific guidelines.

50.43. Pelvic/ Rectal/ Penile/ Vulvar pain a. Superior hypogastric plexus block, up to four (4) times over a three (3) month period;

b. Intrathecal opioids – see specific guidelines c. Peripheral nerve block as approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

Low back-Lumbar pain:

50.44. Lumbar Facet Joint Syndrome a. Injections of facets, up to four (4) times over a six (6) month period, with physical medicine or home exercise. If this needs to be repeated more than twice in a one (1) year or for more than four (4) cycles total, a nurse case manager will be assigned to the claim. Authorization for continued treatment is at the discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

b. Neurolysis/ Denervation by cryotherapy, chemical means , radio-frequency, or surgical intervention if complete pain relief following injections is not sustained.

50.45. Sacroilitis a. Injection of joint with a local anesthetic and steroid, up to four (4) times over a six (6) month period.

50.46. Piriformis Syndrome a. Injection of muscle with a local anesthetic and/or steroid, in conjunction with physical medicine. No more than four (4) injections over a six (6) month period.

50.47. Post Laminectomy Syndrome/ Adhesive Arachnoiditis/ Spinal Stenosis/ Failed Fusion/ Intractable Radiculopathy/ Coccydynia.

a. Lumbar or caudal epidural steroids, up to four (4) injections over six (6) months.

b. Spinal cord stimulation as per Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, guidelines;

c. Intrathecal opioids as per Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, guidelines;

d. Trigger point injections, no more than six (6) points or no more than six (6) occasions in three (3) months.

50.48. Myofacial pain a. Trigger points no more than six (6) points or no more than six (6) occasions in three (3) months.

Lower Extremity:

50.49. Lumbar radiculopathy a. Lumbar epidural steroids, up to 4 injections over a 6 month period, in conjunction with physical medicine, if surgery in the opinion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, is not a medically viable option or if surgery has been attempted and failed to provide relief. If this needs to be repeated more than twice in 1 year or 4 cycles , a nurse case manager may be assigned to the claim. Authorization for continued treatment is at the sole discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

b. Documented interval improvement.

c. Spinal cord stimulation as approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

50.50. Complex Regional Pain Syndrome (Reflex Sympathetic Dystrophy)

a. Referral to specialist immediately upon diagnosis.

b. Lumbar sympathetic plexus block, up to 12 times over a 3 month period;

c. Lumbar epidural infusion with analgesic agents, in conjunction with physical medicine, for up to 4 weeks;

d. Bier block, up to 6 injections over a 3 month period;

e. Spinal cord stimulation as approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

50.51. Phantom Limb Pain/ Stump Pain a. Lumbar sympathetic plexus block, up to 6 injections over a 3 month period.

b. Lumbar epidural infusion with analgesic agents, in conjunction with physical medicine therapy, for up to 4 weeks c. Spinal cord stimulation as approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

50.52. Peripheral Nerve Injury, including saphenouse, femoral or sciatic nerves a. Nerve block, up to 6 injections over a 3 month period;

b. Bier block, up to 6 injections over a 3 month period;

c. Lumbar epidural infusion with analgesic agents, in conjunction with physical medicine, for up to 4 weeks;

d. Spinal cord stimulation as approved by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

50.53. Greater Trochanteric Bursitis a. Up to 3 injections with a local anesthetic and a steroid over a 3 month period.

50.54. Meralgia Paraesthetica a. Injection of lateral femoral cutaneous nerve with a local anesthetic agent, up to 6 injections over a 3 month period.

50.55. Myofascial Pain a. Trigger point injections, no more than 6 points or no more than 6 occasions in 3 months.

50.56. Other Causes Of Extremity Pain a. Treatment will be authorized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in it’s sole discretion, on a case by case basis.

Cancer Pain:

Injury related causality must be established prior to authorization for pain management. A nurse case manager may be assigned to claims involving treatment of cancer pain. Unlike treatment for other types of pain, intrathecal opioids for treatment of cancer pain will not require psychiatric evaluation or a second opinion.

50.57. Long-Term Opioid Use: the use of long-term oral, rectal, or transdermal opioid therapy in the non-malignant injured worker is complex and should only be considered in selected injured workers, including, but not limited to, injured workers with diagnoses of failed back surgery syndrome, Complex Regional Pain Syndrome (Reflex Sympathetic Dystrophy), inoperable spinal lesions and spinal stenosis, or plexopathies. Other diagnoses will be considered by a case by case basis, but only as a treatment option of last resort. The following factors are to be addressed in writing in any report recommending the use of long-term opioid therapy:

a. If low dose opioid therapy has not provided at least partial analgesia, then long-term opioid therapy is not an option.

b. The goal of long-term opioid therapy is not complete analgesia. The efficacy of long term opioid therapy is measured by improvement in the injured worker’s social and physical function.

c. This therapy should be considered only after all other reasonable attempts at analgesia have failed. Opioid therapy should never be a first line treatment.

d. A history of substance abuse in the injured worker or his or her family (alcohol or other drugs), even if remote, should be regarded as a relative contraindication. If a history of substance abuse is obtained and the choice to long-term, opioid therapy is made despite such history, an appropriate consultation and plan to prevent relapse must be in place before prescribing of opioids.

e. Pregnant injured workers are not candidates for long-term opioid therapy. Female injured workers of child-bearing age are to be advised of the risks to a fetus should pregnancy occur during opioid therapy.

50.58. If the decision is made to initiate long-term opioid therapy, the following must be part of the program:

a. Psychiatric – A psychiatric evaluation of the injured worker for psychiatric disorders and potential for substance abuse must precede the decision to carry out long-term opioid therapy, and a copy of the evaluation must be submitted with the request to initiate opioid therapy.

b. A written contract between the injured worker and the pain management specialist must be established at the onset of the long-term drug therapy. The injured worker must agree that (1) a single practitioner will be responsible for prescribing all medication for pain control; (2) the injured worker will not obtain prescriptions from providers other than the pain management specialist; (3) after an initial six month period of initial dose titration, only one dose escalation per three month period will be allowed; and (4) the injured worker will not consume alcohol or other medications except as approved by the pain management specialist. Any material violation discovered may cause immediate drug tapering and discontinuation of opioid maintenance therapy.

c. Initial long-term opioid therapy must be prescribed by a pain management specialist; once therapy has reached the “steady dose” level, the attending physician may resume medical management;

d. The injured worker will be monitored by a nurse case manager during the period when a “steady dose” is being established; the pain management specialist or the attending physician must reevaluate the injured worker every 60-90 days after the “steady dose” has been reached.

e. Injured workers must give informed consent before long-term opioid therapy is initiated; consent must include recognition of the risks of psychological dependence, cognitive impairment and long-term physical side-effects.

f. In order for long-term opioid therapy to continue, there must be documentation of improvement in the social and physical functions, as assessed and documented through home visits by a nurse case manager, written documentation must be provided to the attending physician and pain management specialist. Specific assessment tools must be used such as interview of significant others, pain drawing comparisons, quality of life and social functioning checklist comparisons.

g. Reassessment by a pain management specialist selected by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will be done annually for injured workers maintained on opioids.

h. Every year, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, must review the treatment plant to determine the appropriateness of care. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may call for more frequent review if the use of narcotic medication increases.

i. Evidence of acquisition of opioids from other physicians or persons, uncontrolled increases in dose requirements, drug hoarding, abuse of alcohol or other drugs, conviction of a crime related to drug possession or trafficking, or other behaviors in violation of the narcotic contract should be followed by immediate drug tapering and discontinuation of opioid maintenance therapy.

50.59. Implantable Devices: Use of intrathecal pumps and spinal cord stimulators will only be authorized when other treatments of extremity, back or neck pain, such as pharmacological, physical, or psychological therapy, have failed.

a. The procedure is undertaken only after physical and psychiatric or psychological screening. Psychological or psychiatric clearance will be performed to rule out any untreated psychiatric or behavioral problems and to enhance the efficacy of the device.

b. In the absence of a documented physiological problem, authorization for implantable pain control devices is at the discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

c. An untreated substance abuse problem prior to implementation of the proposed device will be sufficient reason to deny the request for the implantable device, notwithstanding other physical or psychological criteria.

d. An implantable device will not be authorized until a second opinion is given by a physician with credentials to implant similar devices. The second opinion may be based upon a review of the injured worker’s file, or by an independent medical evaluation; either evaluation must be documented in writing. The referral of the injured worker or claim file for the second opinion must be arranged through the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable,.

50.60. Procedure Guides for Implantable Devices.

a. Implementation of devices will be authorized only at facilities which meet the following criteria: (1) a physician trained in residency of by the “hands-on” continuing medical training will perform the procedure; (2) all technical support, computers, and ancillary personnel, and a “stand-by” surgical specialist deemed necessary for the specific case must be in place before the procedure begins.

b. The implanting physician will be responsible for all management of the implantable device until such time that another physician credentialed in the management of like devices accepts the injured worker.

c. The necessary “in-home” support must be authorized by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, and scheduled prior to implantation of the device.

d. Both intrathecal pumps and dorsal column stimulators must have a successful trial period before the permanent device is placed. The trial period for the pump will be no less than two days. The trial period for the stimulator will be no less that three days as an outpatient. There must be at least a 50% reduction in subjective pain rating and objective improvement in ability to engage in functional activities.

50.61. Contraindications for Implantable Devices: The following are contraindications for an implantation:

a. Allergies or hypersensitivity to the drug being used;

b. Life expectancy of less that three (3) months;

c. Body size is insufficient to support weight and bulk of the device;

d. Less than 50% relief is seen with trial stimulation or intrathecal device;

e. The injured worker does not perceive the trial implantation as pleasant, or side effects are intolerable;

f. The injured worker has an active coagulopathy;

g. The injured worker has a localized or disseminated infection;

h. The injured worker has a demand cardiac pacer or may need one relatively soon (for stimulator only);

i. The injured worker has an untreated substance abuse problem;

j. A significant psychological or behavioral contraindication has been identified;

k. The physician requesting the procedure is not adequately trained or experienced in the procedure;

l. Appropriate surgical coverage necessary to handle any complications is not available before beginning the procedure.

50.62. Myeloscopy in Chronic Pain Management – Myeloscopy procedures are to be reviewed on a case by case basis by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, before authorization can be considered.

W. Va. Code R. § 85-20-51 Treatment Guidelines: Complex Regional Pain Syndrome

51.1. Background: Complex regional pain syndrome (CRPS) is a descriptive term encompassing a variety of painful conditions following injury, which appear regionally and have a distal predominance of abnormal physical examination findings. This painful condition typically follows a traumatic injury or noxious event to an extremity, with a disproportionate response respective to the original insult. Medical conditions including stroke and myocardial infarction may also be precipitating factors. The pain pattern is not limited to the distribution of a single peripheral nerve, and physical findings include edema, alterations in skin blood flow, abnormal sudomotor activity in the region of pain, allodynia or hyperalgesia. Treatment for CRPS is only compensable if directly caused by an injury received in the course of and resulting from employment.

51.2. CRPS Type I (Reflex Sympathetic Dystrophy).

a. Type 1 CRPS is a syndrome that may develop after an initiating noxious event.

b. Spontaneous pain or allodynia/ hyperalgesia occurs, but is not limited to the territory of a single peripheral nerve and is disproportionate to the inciting event.

c. There is or has been evidence of edema, skin blood flow abnormality, or abnormal sudomotor activity in the region of the pain since the inciting event.

d. The diagnosis is excluded by the existence of conditions that would otherwise account for the degree of pain and dysfunction.

51.3. CRPS Type II (Causalgia).

a. Type II CRPS is a syndrome that develops after a nerve injury. Spontaneous pain or allodynia/hyperalgesia occurs and is not necessarily limited to the territory of the injured nerve.

b. There is or has been evidence of edema, skin blood flow abnormality, or abnormal sudomotor activity in the region of the pain since the inciting event.

c. The diagnosis is excluded by the existence of conditions that would otherwise account for the degree of pain and dysfunction.

51.4. Diagnostic Criteria:

a. History of a noxious event or cause of immobilization.

b. Continued pain, allodynia or hyperalgesia out of proportion to the injury.

c. Physical evidence of edema, trophic skin changes, hair loss, alterations in skin blood flow or abnormal sudomotor activity in the region of pain.

d. The diagnosis is excluded by the existence of conditions that otherwise account for the degree of pain and dysfunction.

51.5. Diagnostic Studies.

a. Surface temperature measurements indicating at least 1 degree Celsius asymmetry between the normal and injured sides. The existence of a skin temperature differential may vary, and repeated measurements are helpful. The injured side may be warmer or cooler.

b. A three-phase radionuclide bone scan may assist in diagnosis. A normal study does not exclude this diagnosis, however.

c. Radiographic studies of the injured extremity may show patchy demineralization in some cases.

51.6. Treatment: Treatment for compensable complex regional pain syndrome type 1 (reflex sympathetic dystrophy) should be directed at providing pain control in an effort to promote participation in a directed physical and/or occupational therapy program to restore use and function of the injured extremity. Treatment options include:

a. Pharmacologic Agents.

1. Nonsteroidal anti-inflammatory drugs.

2. Tricyclic antidepressants.

3. Anticonvulsants.

4. Oral opioids.

5. Oral steroids.

b. Physical Modalities.

1. Range of motion exercises (passive, active assisted, active).

2. Weight-bearing exercises.

3. Edema-control garments (stocking or glove).

c. Injection Techniques.

1. Somatic and sympathetic nerve blocks.

d. Surgical Sympathectomy. Surgical sympathectomy is rarely considered effective in resolution of complex regional pain syndromes. These syndromes, including causalgia and reflex sympathetic dystrophy, are related to receptor supersensitivity, and are not caused by over-activity of the sympathetic nervous system. Most patients undergoing a surgical sympathectomy obtain only transient improvement in pain levels, and may suffer serious or disabling complications from the surgery.

51.7. The assistance of a pain management psychologist or psychiatrist may be helpful in providing motivational support, assessing and treating co-existing conditions such as depression, and may aid in the establishment of realistic treatment goals and objectives.

51.8. This condition may be appropriate for treatment in a multidisciplinary program.

W. Va. Code R. § 85-20-52 Procedure in Occupational Pneumoconiosis Cases

52.1. A properly completed application must be received before the potential claim will be considered by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. A properly completed application must include 1) a completed WC-105 form; 2) a completed WC-205 form; 3) an ILO form properly completed by a certified “B” reader; and 4) a listing of all alleged exposures to harmful dust, including type of dust, and extent and duration of exposure with each named employer.

52.2. If the employer submits credible evidence demonstrating that it has been in compliance with OSHA and/or MSHA permissible exposure levels, as determined by sampling and testing performed in compliance with OSHA and/or MSHA regulations for the dust alleged by the injured worker, then the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may consider that the dust exposure alleged by the injured worker does not suffice to satisfy the exposure requirements of W. Va. Code §§23-4-1(b) and 23-4-15(b) only for the period(s) covered by the sampling or testing. In order for the evidence to be deemed credible, it must be based upon regularly scheduled exposure samples from each work area where harmful exposure has been alleged, which samples will be obtained by certified industrial hygienists as defined by OSHA and/or MSHA regulations or government agencies, and the samplings must be obtained during the period for which the employer is seeking to avoid chargeability. The employer shall provide to all parties to the claim all discoverable communications to and from the industrial hygienist, and the entire test file, including the results of the industrial hygienist. In the absence of other relevant evidence, periods for which injured workers can demonstrate by credible evidence that the employer’s sampling and test results do not accurately reflect conditions in the injured worker’s work areas shall be included by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, for the period of dust exposure which the claimant has alleged to be harmful.

52.3. Nonmedical hearing.

Upon receipt of a proper application, employer's reports and investigation (if requested by the Commission or Insurance Commissioner, whichever is applicable), the Commission or Insurance Commissioner, whichever is applicable, shall determine the nonmedical questions, and shall notify all interested parties of the decision; Provided, in cases where a self-insured employer or private carrier is not requesting allocation, the self-insured employer or private carrier shall enter the nonmedical order. A properly completed application must be filed or the application shall be rejected. -- After the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, makes or has made a determination, any dissatisfied party may, within thirty (30) days after receipt of written notice of the Commission's, Insurance Commissioner’s, self-insured employer’s or private carrier’s, whichever is applicable, decision, file objection thereto in writing, whereupon the Office of Judges will set a time and place for a hearing thereon. These hearings shall be subject to the provisions of the rules promulgated by the Office of Judges (Title 93, Series 1).

Upon completion of the nonmedical hearing, the Office of Judges will enter a final nonmedical ruling and shall notify the injured worker and employer of this decision. The Office of Judge’s final nonmedical ruling will be subject to appeal to the Workers' Compensation Board of Review.

52.4. Occupational pneumoconiosis board hearing.

Following issuance by the Commission or Insurance Commissioner, whichever is applicable, of a ruling on the nonmedical issues, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall refer this claim to the Occupational Pneumoconiosis Board: Provided That, the requirements of W. Va. Code §23-4-15b have been satisfied. In the case of such reference, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will notify the injured worker to appear before the Board for an examination and shall state the date, time, and location thereof. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will notify the employer or employers of the date, time and place of the examination. A quorum of the Board will then proceed to hear and determine all medical questions relating to the claim.

At such hearing the injured worker and each employer must produce as evidence all reports of medical and X ray examinations that may be in their respective possession or control showing the past or present condition of the employee.

52.5. Report of Occupational Pneumoconiosis Board.

Upon completion of the hearing the participating members of the Occupational Pneumoconiosis Board shall prepare a written report to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, setting forth their findings and decision, and shall prepare a sufficient number of signed copies of report so that the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may file one in his office, send one to the injured worker and one to each employer interested in the claim.

52.6. Objections.

Any interested party who objects, in whole or in part, to the findings and conclusions of the Board may, within the statutory period after the mailing to him of the copy of the report, or within such additional time as may be allowed by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, for good cause shown, file with the office of judges his written objections, specifying the particular statements of the Board's findings and conclusions to which the party objects. Upon receipt of such objection, the office of judges shall set a time and place for a hearing thereon and shall notify each interested party and each member of the Board of the time and place of the hearing.

52.7. Hearings on protest.

Hearings held upon protest to the findings of the Occupational Pneumoconiosis Board will be held by the office of judges in Charleston unless the office of judges shall otherwise direct. The procedure in protest hearings shall be governed by the provisions of the procedural rules of the office of judges, except that evidence shall be limited to medical testimony and other competent medical evidence, unless the Board has passed upon non-medical aspects under the Commission's or Insurance Commissioner’s, whichever is applicable, referral. Cross-examination of the Board shall be limited to those members who examined the injured worker. However, if the office of judges decides that testimony of other members of the Board is necessary or desirable, the office of judges may permit such testimony at the protest hearing.

52.8. Employer's Request For Medical Examination.

An employer's request for medical examination of the injured worker by a physician of its choice, shall be rejected if filed before the findings of the Occupational Pneumoconiosis Board have been transmitted to the injured worker and the employer. Such requests shall be entertained only when filed subsequent to the transmittal of the Occupational Pneumoconiosis Board findings.

52.9. Standards for medical examination.

a. The following standards specify examination and evaluation criteria to guide the Occupational Pneumoconiosis Board in its examination and evaluation of injured workers, and to guide other physicians and medical technicians who conduct examinations and evaluations of injured workers on behalf of such injured workers and their employers. These standards are established for the further purpose of ensuring that uniform procedures are used in administering and interpreting ventilatory function tests and arterial blood gas studies and that the best available medical evidence will be obtained in support of a claim for occupational pneumoconiosis benefits. The physician supervising any such testing and/or the technician administering any such testing will so indicate by signing the reports. Any report of test results submitted to the Occupational Pneumoconiosis Board must affirmatively state, as to each of the standards individually, the fact that the particular test or study was performed in compliance with that standard. In the event that any such report fails to affirmatively show compliance with these standards, the Occupational Pneumoconiosis Board may disregard all or any part of such test or study or give such test or study such weight as the Board believes it deserves.

b. When two (2) or more ventilatory function tests performed in reasonably close proximity in time produce differing but acceptable results, the Commission or Insurance Commissioner, whichever is applicable, at the request of the Occupational Pneumoconiosis Board, may direct the parties to furnish additional evidence and/or order additional testing at the laboratory utilized by the Occupational Pneumoconiosis Board or other laboratories, all for the purpose of determining whether any of the results are unreliable or incorrect or are clearly attributable to some identifiable disease or illness other than occupational pneumoconiosis.

c. When blood gas studies are performed and abnormal values are obtained and thereafter new blood gas studies are performed and normal or significantly higher values are further obtained, the Commission or Insurance commissioner, whichever is applicable, at the request of the Occupational Pneumoconiosis Board, may direct the parties to furnish additional evidence and/or order additional studies at the laboratory utilized by the Occupational Pneumoconiosis Board or other laboratories, all for the purpose of determining whether any of the values are unreliable or incorrect or are clearly attributable to some identifiable disease or illness other than occupational pneumoconiosis.

d. As used herein, the following terms shall have the meanings indicated:

1. FVC -forced vital capacity -- Volume of air that can be forcefully exhaled from the lungs after a maximal inspiration.

2. FEV1 -forced expiratory volume in one (1) second -- Volume of air that can be exhaled forcefully from the lungs in one (1) second after a maximal inspiration. 3.. FEV3 -forced expiratory volume in three seconds -- Volume of air that can be exhaled forcefully from the lungs in three (3) seconds after a maximal inspiration.

3. FEV1FEV -forced expiratory volume (timed) to forced expiratory volume. -- A ratio expressed as a percentage.

4. MVV -maximal voluntary ventilation -- The volume of air that can be exchanged over a unit period of time, usually performed for twelve (12) to fifteen (15) seconds and converted to liters per minute.

5. BTPS -- Body temperature, ambient pressure, saturated with water.

6. Kpm -kilopond meter -- The amount of work required to lift one (1) kilogram one (1) meter.

7. NIOSH -- National Institute for Occupational Safety and Health.

8. BOARD -- West Virginia Occupational Pneumoconiosis Board.

9. NBRC – National Board for Respiratory Care 11. CPFT – Certified Pulmonary Function Technician 12. RPFT -- registered Pulmonary Function technologist 13. Raw – Airway resistance 14. DLCO – Carbon monoxide diffusing capacity of the lungs 15. DL/VA – Carbon monoxide diffusing capacity per unit of alveolar volume 16. VA – Alveolar volume (single breath equivalent to TLC)

10. TLC – Total Lung Capacity (measured by plethysmograph, Nitrogen washout, or helium dilution.

e. Ventilatory function tests.

1. Instruments to be used for the administration of ventilatory function tests should conform to the following criteria:

A. The instrument must be accurate within plus (+) fifty (50) ml or within plus (+) three percent (3%) of reading, whichever is greater.

B. The instrument must be capable of measuring vital capacity from zero (0) to seven (7) liters BTPS.

C. The instrument must have a low inertia and offer low resistance to airflow such that the resistance to airflow at twelve (12) liters per second must be less than 1.5 cm H20/liter/second.

D. The zero time point for the purpose of timing the FEV1 must be determined by extrapolating the steepest portion of volume-time curve back to the maximal inspiration volume or by an equivalent method.

E. Instruments incorporating measurements of airflow to determine volume must conform to the same volume accuracy stated in Subdivision 52.9.e.1.A of this regulation when present with flow rates from at least zero (0) to twelve (12) liters per second.

F. The instrument or user of the instrument must correct volumes to body temperature saturated with water vapor (BTPS) under conditions of varying ambient spirometer temperatures and barometric pressures.

G. The instrument used must provide tracings of volume versus time during the entire forced expiration. Flow versus volume tracings may be added. If MVV maneuver is performed, the volume versus time tracings must also be provided. Such tracing must be furnished to the Board with the test results. Volume Scale: When a volume – time curve is plotted or displayed, the volume scale must be at least: 10 mm/L (BTPS). Time scale: at least 10 mm/S. No results will be considered by the Board unless they are accompanied by the corresponding (minimum 3) tracings. Tracings are to determine whether the subject has performed the test properly. The tracing must be of sufficient size that hand measurements may be made within the requirement of paragraph 1A above.

H. The instrument must be capable of accumulating volume for a minimum of ten (10) seconds after the onset of exhalation.

I. The forced expiratory volume in one (1) second (FEV1 measurement must comply with the accuracy requirements stated in Subdivision 52.9.e.1 of these Regulations; that is, the FEV1 must be accurately measured to within plus (+) fifty (50) ml or within plus (+) three percent (3%) of reading, whichever is greater.

J. The instrument must be capable of being calibrated in the field with respect to the FVC and time scales. This calibration of the FVC may be done either directly or indirectly through volume and time base measurements. The volume calibration source must provide a volume displacement of at least three (3) liters and must be accurate to within plus (+) thirty (30) ml.

K. For measuring maximum voluntary ventilation (MVV), the instrument must have a response which is flat within plus (+) ten percent (10%) at flow rates up to twelve (12) liters per second over the volume range. The time for exhaled volume integration or recording must be no less than twelve (12) seconds and no more than fifteen (15) seconds. The indicated time must be accurate to within plus (+) three percent (3%). A recording of the spirometer tracing is required, and the volume sensitivity must be such than ten (10) mm or more deflection corresponds to one (1) liter volume.

2. The administration of ventilatory function tests must conform to the following criteria: For ascertainment of the FEV1 and FVC, a nose clip or alternative must be used. The procedures must be explained in simple terms to the subject who shall be instructed to loosen any tight clothing and sit or stand in front of the apparatus. Although the subject may sit or stand, care should be taken on repeat testing that the same position is used. Sitting position will be considered the preferred method although standing may be utilized for obese patients and notations made as to the position. Particular attention must be given to insure that the subject's chin is slightly elevated with the neck slightly extended. The subject must be instructed to make a full inspiration, either from the spirometer or the open atmosphere, and then blow into the apparatus, without interruption, as hard, fast, and completely as possible.

At least three (3) forced expirations must be carried out. During the maneuvers, the subject must be observed for compliance with instructions. The expirations must be checked visually for reproducibility by examining the flow-volume or volume-time tracings. The effort shall be judged unacceptable and cannot be considered in evaluating pulmonary functional impairment when the subject:

A. The largest and second largest FVC are not within 7% of each other; or B. The largest and second largest FEV1 are not within 7% of each other; or C. Has not continued the expiration for at least six (6) seconds or until an obvious plateau in the volume-time curve has occurred. Exceptions: Young adults and patients with restrictive defects tend to plateau early. Reduced FVC with a normal or high FEV1/FVC ration is suggestive of restriction, although measurement of TLC is required to confirm restriction; or D. Tracings indicate cough prior to the FEV1 measurement; or E. Early termination of flow (glottis closure); or F. Has an unsatisfactory start of expiration, one characterized by excessive hesitation (or false starts), and therefore did not allow back extrapolation of time zero (0) (extrapolated volume on the volume-time tracing must be less than ten percent (10%) of the FVC); or G. Has an excessive variability between the three (3) acceptable curves. The variation between the two (2) largest FVCs and the two (2) largest FEV1s.

H. Predicted values are derived from Kory's Nomogram (1961).

3. For ascertainment of the MVV, the subject must be instructed before beginning the test that he or she will be asked to breathe as deeply and as rapidly as possible for approximately twelve (12) seconds. Sitting position will be considered the preferred method although standing may be utilized for obese patients and notations made as to the position. Care shall be taken on repeated testing that the same position is used. The test may be performed with the subject in either a sitting or standing position. Care shall be taken on repeat testing that the same position is used. The subject should breathe normally into the mouthpiece of the apparatus for ten (10) to fifteen (15) seconds to become accustomed to the system. The subject should then be instructed to breathe as deeply and as rapidly as possible and shall be continually encouraged during the remainder of the maneuver. The subject shall continue the maneuver for twelve (12) seconds. Only one (1) MVV maneuver is necessary. The effort must be judged unacceptable and cannot be considered in evaluating pulmonary functional impairment when the patient:

A. Has not maintained consistent effort for at least twelve (12) to fifteen (15) seconds; or B. Has coughed or closed his glottis; or C. Has an obstructed mouthpiece or a leak around the mouthpiece (obstruction due to tongue being placed in front of mouthpiece, false teeth falling in front of mouthpiece, etc.); or D. Has an excessive variability between the three (3) satisfactory curves. The variation between the three (3) satisfactory tracings must not exceed ten percent (10%) and should approximate forty (40) times the greatest FEV1 volume.

4. A calibration check must be performed on the instrument each day before use, using a volume source of at least three (3) liters, accurate to within +one percent (1%) of full scale. The room air in the syringe must be introduced into the spirometer once with a flow rate of approximately five tenths (5/10) liters per second (six (6) seconds emptying time with a three (3) liter syringe) and once with a higher flow rate of approximately three (3) liters per second (one (1) second emptying time with a three (3) liter syringe). The volume measured by the spirometer must be between two and nine tenths (2.90) and three and one tenth (3.10) liters for both trials. Accuracy of the time measurement used in determining the FEV1 must be checked using the manufacturer's stated procedure and must be within +three percent (3%) of actual. The procedure described herein must be performed as well as any other procedures suggested by the manufacturer of the spirometer being used.

5. The first step in evaluating a spirogram for the FVC and FEV1 shall be to determine whether or not the subject has performed the test properly or as described in Subdivision 52.9.e.2 of this regulation and the forced expiratory volume. From the three (3) satisfactory tracings, the forced vital capacity (FVC) and the forced expiratory volume in one (1) second (FEV1) must be measured and recorded. The largest FVC and the largest FEV1 must be used in the analysis, corrected to BTPS.

6. Only MVV maneuvers which demonstrate consistent effort for at least twelve (12) seconds shall be considered acceptable. The largest accumulated volume for a twelve (12) second period corrected to BTPS and multiplied by five (5) shall be reported as the MVV.

f. Single Breath Carbon Monoxide Diffusion Capacity 1. For ascertainment of the Single Breath DLCO, the subject must be instructed before beginning the test that he or she will be asked to breath normally through the system for a number of breaths to achieve stable tidal breathing, then exhale to the level of residual volume (RV). At that point, the patient will be instructed to inhale quickly to the level of Total Lung Capacity (TLC) and hold their breath for approximately 10 seconds, then exhale for sample collection in the instruction of the technician administering the test.

2. Single breath carbon monoxide diffusion capacity tests are performed using the Jones-Meade method of measurement.

3. Predicted values are derived from Crapo (1981) nomogram.

4. Total Hemoglobin and Carboxyhemoglobin are to be reported. Subjects with anemia will have results corrected to hemoglobin of 14.6 (males) and 13.4 (females).

5. IVCs from each acceptable maneuver shall be reported.

6. Reports will include DLCO, Alveolar Volume (VA) and DL/VA.

7. At least two (2) maneuvers are to be carried out. During the maneuvers, the subject must be observed for compliance of instructions. The effort(s) shall be judged unacceptable and cannot be considered in evaluating pulmonary function impairment when the subject:

A. IVCs do not achieve 85% of previously measured vital capacity.

B. Actual DLCO measurements are not within 3 ml or 10% whichever is larger.

C. IVCx (SVCs) are not reported for each acceptable maneuver.

D. Inspiratory time exceeds 2.5 seconds.

E. Breath hold time is less than 9 seconds or exceeds 11 seconds.

F. Sample is not obtained within 4 seconds after breath hold.

G. Carboxyhemoglobin is not reported or value is 3.1% or higher.

g. AIRWAY RESISTANCE (Raw)

1. Airway resistance measurement will be measured using a body plethysmograph. For ascertainment of the Raw, the subject must be instructed before beginning the test that he or she will, after being sealed in the plethysmograph, be asked to breath normally while temperature equilibration occurs and then to hold cheeks with hands and gently pant while open and close shutter measurements are taken.

h. Arterial blood gas studies.

1. In order to ensure comparability of data obtained in arterial blood studies, the following guidelines should be observed:

A. The puncture site should be infiltrated with a local anesthetic to minimize pain and arterial spasm.

B. The barrel of the syringe used to draw the blood sample should contain a coating of lithium heparin. If wetted syringes are used, the excess heparin must be expelled just prior to obtaining the blood sample.

C. The subject should be allowed to rest while breathing room air for fifteen (15) minutes prior to drawing the sample.

D. Resting blood samples should be drawn with the subject in the sitting position. If supine position is necessary, a notation is to be made on the report.

E. On occasions when the subject is unable to be exercised due to physical impairments; i.e., heart disease, artificial leg, etc., a resting sample of arterial blood may be drawn by direct puncture with a twenty-twenty-five (20-25) gauge needle and a heparinized syringe.

F. Blood samples must be discarded if contaminated by an air bubble.

G. All blood samples should be analyzed immediately (less than ten (10) minutes). If not, the sample should be placed in ice water slush for up to 1 hour. If the analysis is not performed within ten (10) minutes, the metabolic activity of the cells in the blood will cause the p02 to fall and the pC02 to rise.

H. If an exercise sample is to be obtained, a plastic catheter may be inserted into the radial or brachial artery for both the resting as well as the exercise sample. Single stick exercise samples may also be obtained if drawn during the last 30 seconds of exercise. Any variation should be so noted.

I. Exercise must be accomplished by having the subject pedal the bicycle ergometer at a rate of fifty (50)-sixty (60) revolutions per minute against a resistance of seventy-five (75) Watts or four hundred fifty (450) Kilopond Meters (Kpm) per minute for a period of five (5) minutes. A treadmill may be used, and when used, exercise must be done at two (2) mph and ten percent (10%) grade. During the last twenty (20) seconds of the fifth minute of exercise, the exercise sample must be drawn into a heparinized syringe and the pulse and respiration rates noted. If an added level of exercise is performed, this must be done at one hundred twenty (120) Watts on the bicycle, or on the treadmill at two and five tenths (2 5/10) mph and twelve percent (12%) grade. Exercise testing beyond the level set forth herein shall be considered to be measurements of physical conditioning rather than of blood gas transfer abnormalities due to occupational pneumoconiosis. The EKG leads are then removed and the subject allowed to sit on a chair while the catheter is removed. Pressure must be held at the site of arterial cannulation for five (5) minutes, and if there is no bleeding or hematoma present, a compression bandage must be placed on the radial artery. This bandage must be left in place for four (4) hours. After about fifteen (15) minutes of observation, the subject will be allowed to leave. The arterial blood sample should be drawn while exercise continues, not following cessation of exercise.

J. EKG monitoring with a single lead should take place during exercise to determine the heart rate. It should be noted that this is not an EKG Stress Test.

K. The report should indicate the place, date and time of the study, altitude of the testing site and barometric pressure at the testing site on the day of the testing, name and claim number of the subject, name of any assisting personnel, name and signature of the supervising physician, duration and type of exercise (if performed), pulse rate and respiration at the time the blood sample was drawn, and whether analysis equipment was calibrated before each test.

2. It is recognized that arterial blood gas studies done in laboratories throughout this state are obtained at different altitudes. Only by "Standardizing" for altitude can an equitable assessment be made of impairment when values of arterial oxygen are being measured at remarkably different altitudes. Therefore, the results reported from laboratories should include the name of the laboratory and the date and time of the testing, altitude of the laboratory and barometric pressure at the laboratory on the day the samples were collected. The Occupational Pneumoconiosis Board will evaluate the arterial blood gas values by converting those values to the average altitude of Charleston, West Virginia. For this purpose, it shall be sufficient to add one (1) mmHg to each arterial oxygen tension for each three hundred (300) feet or fraction thereof that the testing laboratory is located above the average altitude of Charleston, because the relationship of barometric pressure (altitude) and alveolar oxygen is approximately linear up to four thousand (4,000) feet as long as the subject breathes room air.

As an example, Bluefield is located approximately two thousand six hundred (2,600) feet above sea level. Charleston is approximately six hundred (600) feet above sea level. Thus, arterial oxygen values obtained in Bluefield should have 6.67 mmHg added to them before applying the table to them to obtain "percent impairment". The calculations are as follows:

"Bluefield (2,600') minus Charleston (600') equals 2,000' differential 2,000' divided by 300' altitude equals 6.67 6.67 multiplied by 1 mmHg per 300' altitude equals 6.67 mmHg"

i. See the attached Table 85-20A, “Impairment of Pulmonary Function.”

52.10. Treatment Issues The following services may be provided without prior authorization if carried out under the standards referenced and if the service is documented as to its medical necessity.

1. MEDICAL VISITS: Office visits will be considered for payment according to the following schedule based on the FEV1/FVC ratio or upon percent of disability award (where there is a conflict, FEV1 will be the controlling factor):

FEV1/FVC*

WCF % OP AWARD

LEVEL OF IMPAIRMENT

MEDICAL VISITS 70-74% 10-15%

I One intermediate visit per year. 61-69% 20-30% II One comprehensive or extended visit per year for medically necessary pulmonary follow-up care. 60% or less 40%> III One comprehensive or extended visit per year. Up to four limited visits per year for medically necessary pulmonary follow-up care. *Based on Actual Results rather than Nomograms.

2. TESTING: The testing referenced below will only be considered for payment when the medical necessity is documented by the treating physician. Equivalent testing performed in conjunction with the claimant’s examination by the OP board shall be considered toward satisfaction of the limits herein referenced. This testing, with the exception of chest X-rays, is not applicable to claimants with Zero Level of Impairment.

a) Spirometry: Annually in conjunction with a comprehensive, extended or intermediate office visit. This testing must be performed in compliance with the standards outlined in the Commission’s or Insurance Commissioner’s, whichever is applicable, rules and regulations.

b) Single Breath Diffusion Study: Once for all eligible claimants. Repeat every two years if less than 60% of predicted. Repeat every four years if 60% of predicted or greater.

c) Chest X-Ray: Normal – every four years maximum. Positive reading for OP -- every two years maximum.

d) Blood Tests: Theophylline level annually for claimants taking theophylline medication. Additional theophylline testing will be considered when necessary to monitor and stabilize the blood levels during the first year of ingestion.

Complete blood count and Chemistry – 12 every four years for claimants in Level II.

Complete blood count and Chemistry – 12 annually for claimants in Level III.

This testing is not authorized for claimants in Levels 0 and I.

3. MEDICATIONS: The following will be considered for payment prescribed for an acute or chronic condition or problem caused or exacerbated by OP and when such has been documented by the treating physician.

All above 15% PPD a) Bronchodilators for claimants with a 15% or greater improvement in FEV1 or FVC on a current post bronchodilator study.

b) Other medications on the Medicaid formulary including antibiotics, steroids and diuretics when required for treatment of pulmonary conditions related to OP for up to 14 days of treatment. Longer treatment may be authorized but will require prior authorization based upon a statement of medical necessity from the treating physician and appropriate prescribing practices.

c) Expectorants or mucolytics will not be approved.

d) Pneumococcal vaccine once and annual flu vaccine for all eligible claimants where the physician certifies that the vaccine is consistent with national guidelines of immunization practices regarding health status and age of the patient.

e) Cardiac medications may be authorized when the cardiac problem is a complication of the pneumoconiosis. Authorization will not be granted for treatment of cardiac conditions unrelated to occupational pneumoconiosis, nor for cardiomyopathy, coronary heart disease or coronary bypass surgery.

4. PULMONARY REHABILITATION: Pulmonary rehabilitation services are authorized according to the following schedule when such services are provided by a certified pulmonary rehabilitation center approved by the U. S. Department of Labor and provided in accordance with the guidelines of the WV Department of Health.

LEVEL OF IMPAIRMENT

WCF % AWARD

FEV1/FVC*

AUTHORIZED TREATMENT

A 5% 75% or greater None B 10-15% 70-74% One hour of education focusing on the nature of pulmonary disease and prevention of progression.

C 20-40% 56-69%

Additional four hours of education and training focusing on techniques and dealing with shortness of breath and pulmonary distress management. (5 hours total) Two hours of follow-up education and training one year later.

D 40%> 55% or less Additional two hours of education training focusing on individualized treatment of severe pulmonary impairment. (7 hours total) Two hours of follow-up education and training one year later.

Homebound claimants (as result of pulmonary impairment)

Seven hours of education and training by home visitation.

Two hours of follow-up education and training each subsequent year.

Pulmonary rehabilitation programs coverage includes: Prevention of disease progression, nutrition, hygiene, anatomy, recognition of symptoms, smoking cessation, physical conditional, weight control, breathing techniques, drug evaluation, stress reduction and follow-up.

Pulmonary rehabilitation services must be provided by a registered nurse, licensed practical nurse or respiratory therapist.

The following services require prior authorization and the request for such authorization must be accompanied by a statement of medical necessity from the treating physician.

1. Arterial Blood Gas (Or Oximetry):

a) Administration of arterial blood gases or oximetry shall be restricted to situations where it is necessary to evaluate the need for chronic oxygen therapy consistent with American Thoracic Society Guidelines.

b) Prior authorization is also required to repeat blood gases and is contingent upon the treating physician providing documentation that the claimant’s initial study showed a PO2 over 80 or 02 saturation over 95%. The PO2 levels listed below will be the determining factor in how frequently the repeat test will be considered for authorization.

PO2 less than 55 or O2 less than 90% saturation – repeat no more than annually.

PO2 55 to 80 or O2 saturation 90 to 95% - repeat no more than every two years.

PO2 over 80 or O2 saturation over 95% - repeat no more than every four years.

2. Durable medical equipment and nursing care:

a) Purchase or rental of durable equipment such as hospital beds, commode chairs and lifts. Authorization of durable medical equipment, including oxygen delivery systems, shall be given in the sole discretion of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

b) In-home nursing care or home health care for bedridden claimants.

c) Nursing home care in properly licensed and operated facilities.

d) Mechanical nebulizer: Authorization for Mechanical nebulizers shall only be granted upon certification of medical necessity from the treating physician which indicated why the use of less expensive medication delivery such as hand nebulizers or metered dose devices is not feasible.

3. Oxygen: Except when administered for medical emergency, oxygen therapy requires prior authorization and will only then be authorized when in compliance with the guidelines of the American Thoracic Society.

W. Va. Code R. § 85-20-53 Long-Term Opioid Therapy Guideline

53.1. These guidelines are used by the provider in the management of chronic nonmalignant pain. Chronic nonmalignant pain is defined as pain persisting beyond the expected normal healing time for an injury, for which traditional medical approaches have been unsuccessful. These guidelines do not apply to claimants whose pain is the result of a malignant process (cancer), or when the pain therapy is aimed at relieving intractable pain and suffering in the terminally ill when other measures fail, assuming a compensable diagnosis.

53.2. Successful management of intractable chronic non-malignant pain (hereinafter referred to as “chronic pain”) usually does not require the use of opioid medications. There are other effective and non-pharmacologic treatment interventions available. Some carefully selected claimants with chronic pain may benefit from opioid maintenance analgesia (OMA). These claimants function better, are sometimes able to resume working, maintain improved pain control with acceptable side effects, and continue to use their medications in a responsible manner.

53.3. In some claimants, long-term OMA fails. Pain control is marginal, function does not improve, side effects prohibit ongoing therapy, or the claimant’s ability to use the medication properly is poor or erratic. The key to success in the management of OMA is careful selection of candidates and monitoring.

53.4. Candidates for long -- term OMA should:

a. Have an established diagnosis that is consistent with chronic pain.

b. Have not responded to non-opioid treatment.

c. Not be pregnant. Claimants likely to become pregnant during the course of treatment must be advised of the risks to the fetus should pregnancy occur.

d. Not be using illegal drugs or abusing alcohol.

e. Be reliable claimants who are known to the physician and are expected to be compliant with the treatment protocol.

53.5. Long term OMA is contraindicated for claimants who have persistent pain out of proportion to physical findings and/or with no demonstrable lesion, and who meet the criteria for the diagnosis of “chronic pain syndrome”.

53.6. Documentation recommendations for controlled substances prescribed within the guidelines.

a. A thorough medical history, physical examination, diagnosis and treatment plan should be documented, with particular attention focused on determining the cause(s) of the injured worker's pain, sleeplessness or anxiety.

b. The treatment plan should include the following information:

1. A list of all current medications (with doses), including medications prescribed by other physicians (whenever possible);

2. Therapies and procedures other than medications to manage/relieve pain;

3. Consultations with health care professionals;

4. Further planned diagnostic evaluation; and 5. Follow-up plan to assess progress.

c. The above standards for documentation are being recommended for inclusion in the provider's records. These records should be submitted to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

53.7. Claimants with a personal history of addiction (or in their immediate family) or poor impulse control are at an increased risk of failing to comply with an OMA regimen.

The risk of abuse or adverse outcome is high if any of the following factors are present:

a. History of active use of alcohol or other substance abuse.

b. Co-morbid psychiatric disorders.

c. Poor response to opioids in the past for the same condition.

53.8. All potential candidates for long-term OMA, with a positive history of any of the above risk factors, must undergo a psychiatric or psychological evaluation to determine the appropriateness of long-term OMA to rule out co-morbid psychiatric disorders and the potential for addiction.

53.9. In addition, any claimant who has been on opioids without evidence of improvement must also undergo a psychological evaluation.

53.10. The report of such an evaluation must be provided to the claimant’s Workers’ Compensation Division Claims Manager as soon as possible after starting the OMA.

53.11. There is no clinical indication for using injectable opioid preparations for claimants with chronic pain. Injectable opioid preparations should only be used in cases of acute pain. They should never be prescribed as a self-medication on an as needed basis.

53.12. Continuation of Long-Term OMA:

a. If low to moderate dose opioid therapy has not provided at least partial analgesia, then long-term OMA is not indicated.

b. Complete analgesia is not the goal of long-term OMA. The efficacy of the therapy is measured not only by reduction in pain but also by improvement in physical and social function. Therefore, documentation of pain and function is essential to monitor the success of the therapy. Functional tool: Table 18.3 of the AMA Guides, Fifth Edition, or a comparable tool.

c. Monitoring of the progress of the therapy must be documented on the attached forms every 30 days the first three months and every 60 days the next six months.

d. d. A specialist experienced in pain management selected by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall evaluate every claimant on long-term OMA annually to determine the need for continuing OMA.

e. A treatment agreement between the patient and the provider is recommended.

53.13. Definitions for this Section:

a. Acute pain is the normal, predicted physiological response to an adverse chemical, thermal, or mechanical stimulus and is associated with surgery, trauma, and acute illness. It is generally time-limited and is responsive to opioid therapy among other therapies.

b. Chronic Non-malignant Pain is an evolving pathological process that can be defined as pain persisting beyond the expected reasonable healing time for an injury despite medical treatment.

c. Chronic Pain Syndrome (CPS): Any claimant presenting with persistent pain of at least three months duration, which may be consistent with or significantly out of proportion to physical findings, and who has at least two of the four criteria listed below should be considered a CPS patient.

1. A progressive deterioration in ability to function at home, socially, or at work.

2. A progressive increase in health care utilization (such as repeated physical evaluations, diagnostic tests, requests for pain medications, and/or invasive procedures).

3. Demonstrable mood disturbance.

4. Clinically significant anger.

d. Qualifications of the Pain Management Specialist for evaluating and treating:

1. A pain management specialist must be Board-certified by the American Board of Medical Specialists. At this time, the only such Board is the American Board of Anesthesiology and this board will be available to all pain practitioners in the next year.

2. He/she must be licensed by the State of WV.

3. He/she should have at least three years experience in chronic pain management, behavioral management, and/or addiction 4. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will annually provide a list of approved chronic opioid pain management specialists, based on the above criteria and satisfactory objective measures of prior performance.

e. Qualifications of the Psychologist for evaluating and treating:

1. The psychologist must be licensed by the State of WV.

2. He/she should have at least three years experience in chronic pain management, behavioral management, and/or addiction.

3. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will annually provide a list of approved chronic opioid pain evaluating psychologists, based on the above criteria and satisfactory objective measures of prior performance.

f. Qualifications of the Psychiatric Addiction Specialist for evaluating and treating:

1. The psychiatrist must be licensed by the State of WV.

2. He/she must be Board-certified in Psychiatry.

3. He should have at least three years experience in treating patients with addictive disorders and have active hospital privileges in the treatment of same.

4. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will annually provide a list of approved psychiatric addictive specialists, based on the above criteria and satisfactory objective measures of prior performance.

53.14. Guidelines for the prescription for controlled substances schedules II - IV (refer to Table § 85-20-B for controlled substances schedule)

a. Schedule II drugs should be prescribed on an outpatient basis for no longer than two weeks after initial injury or following a subsequent operative procedure.

b. Schedule III drugs should be prescribed on an outpatient basis for no longer than six weeks after initial injury or following a subsequent operative procedure.

c. Schedule IV opioid drugs should be prescribed on an outpatient basis for no longer than six weeks after initial injury or following a subsequent operative basis.

d. Schedule IV sedative and anxiolytic drugs should be prescribed on an outpatient basis for no longer than six months after initial injury or following a subsequent operative procedure.

e. To prescribe medications beyond the above guidelines, authorization must be obtained from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. Authorization requests must include documentation as described in the Rule. It is recommended that providers utilize less potent medications when continued use is indicated.

53.15. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not reimburse for treatment in methadone maintenance programs. These programs are specifically intended to manage opiate addiction and the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall not reimburse costs of treatment, medication, or any other expense associated with these programs.

V. SPECIAL RULES ON DRUGS AND MEDICATIONS

W. Va. Code R. § 85-20-54 Drugs with Specific Limitations

54.1. Injectables. Prescriptions for injectable opioids or other analgesics, sedatives, antihistamines, tranquilizers, psychotropics, vitamins, minerals, food supplements, and hormones are not covered.

54.2. Exceptions: The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, covers injectable medications under the following circumstances.

a. Indicated injectable drugs for the following:

1. Inpatients; or 2. During emergency treatment of a life-threatening condition/injury; or 3. During outpatient treatment of severe soft tissue injuries, burns or fractures when needed for dressing or cast changes; or 4. During the perioperative period and the postoperative period, not to exceed forty-eight hours from the time of discharge.

b. Prescriptions of injectable insulin, heparin and related anticoagulants, anti-migraine medications, or impotency treatment, when proper and necessary.

54.3. Noninjectable scheduled drugs administered by other than the oral route. Nonoral routes of administration of scheduled drugs that result in systemic availability of the drug equivalent to injectable routes will also not be covered.

54.4. Sedative-hypnotics. During the chronic stage of an industrial injury or occupational disease, payment for scheduled sedatives and hypnotics will not be authorized.

54.5. Benzodiazepines. Payment for prescriptions for benzodiazepines is limited to the following types of patients:

a. Hospitalized patients;

b. Injured workers with an accepted psychiatric disorder for which benzodiazepines are indicated;

c. Injured workers with an unrelated psychiatric disorder that is retarding recovery but which the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, has temporarily authorized treatment and for which benzodiazepines are indicated; and d. Other outpatients for not more than thirty days for the life of the claim.

54.6. Cancer. When cancer or any other end-stage disease is an accepted compensable condition, the department or self-insurer may authorize payment for any indicated scheduled drug and by any indicated route of administration.

54.7. Spinal cord injuries. When a spinal cord injury is an accepted condition, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may authorize payment for anti-spasticity medications by any indicated route of administration (e.g., some benzodiazepines, Baclofen). Prior authorization is required.

W. Va. Code R. § 85-20-55 Drugs and Medications: Actions

55.1. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may take any or all of the following steps when concerned about the amount or appropriateness of drugs the patient is receiving:

a. Notify the attending physician of concerns regarding the medications such as drug interactions, adverse reactions, prescriptions by other providers;

b. Require that the attending physician send a treatment plan addressing the drug concerns;

c. Request a consultation from an appropriate specialist;

d. Request that the attending physician consider reducing the prescription, and provide information on chemical dependency programs;

e. Limit payment for drugs on a claim to one prescribing doctor.

55.2. If the attending physician or worker does not comply with these requests, or if the probability of imminent harm to the worker is high, the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may discontinue payment for the drug after adequate prior notification has been given to the worker, pharmacy and physician.

55.3. Physician failure to reduce or terminate prescription of controlled substances, habit forming or addicting medications, or dependency inducing medications, after the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, request to do so for an injured worker may result in a transfer of the worker to another physician of the worker's choice

W. Va. Code R. § 85-20-56 Physician’s Records of Medication

The physician's record must contain the name and reason for the medication, the dosage, quantity prescribed and/or dispensed, the route of administration, the frequency, the starting and stopping dates, the expected outcome of treatment, and any adverse effects that occur. Failure to maintain these records may be considered abuse under W. Va. Code §23-4-3c.

W. Va. Code R. § 85-20-57 Payment for oral opioid treatment for chronic, noncancer pain

Chronic, noncancer pain may develop after an acute injury episode. It is defined as pain that typically persists beyond two to four months following the injury. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in its sole discretion, may pay for oral opioids for the treatment of chronic, noncancer pain caused by an accepted condition when that treatment is reasonably required.

W. Va. Code R. § 85-20-58 Required authorization for treatment of chronic, noncancer pain with opioids

58.1. No later than thirty days after the attending physician begins treating the worker with opioids for chronic, noncancer pain, the attending physician must submit a written report to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, in order for the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to pay for such treatment. The written report must include the following:

a. A treatment plan with time-limited goals, including a time schedule to wean the injured worker from opiod use;

b. A consideration of relevant prior medical history;

c. A summary of conservative care rendered to the worker that focused on reactivation and return to work;

d. A statement on why prior or alternative conservative measures may have failed or are not appropriate as sole treatment;

e. A summary of any consultations that have been obtained, particularly those that have addressed factors that may be barriers to recovery;

f. A statement that the attending physician has conducted appropriate screening for factors that may significantly increase the risk of abuse or adverse outcomes (e.g., a history of alcohol or other substance abuse); and g. An opioid treatment agreement that has been signed by the worker and the attending physician. This agreement must be renewed every six months. The treatment agreement must outline the risks and benefits of opioid use, the conditions under which opioids will be prescribed, the physician's need to document overall improvement in pain and function, and the worker's responsibilities.

W. Va. Code R. § 85-20-59 Required documentation to be submitted for continued coverage of opioids to treat chronic, noncancer pain

59.1. In addition to the general documentation required by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, the attending physician must submit the following information at least every sixty days when treating with opioids:

a. Documentation of drug screenings, consultations, and all other treatment trials;

b. Documentation of outcomes and responses, including pain intensity and functional levels; and c. Any modifications to the treatment plan.

The physician must document the patient's improvement in pain intensity and functional levels.

W. Va. Code R. § 85-20-60 Duration of payment for opioids to treat chronic, noncancer pain

60.1. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will continue to pay for treatment with opioids if directly related to a compensable condition so long as the physician documents in addition to the information required in Section 58 of this Rule:

a. Substantial reduction of the patient's pain intensity; and b. Continuing substantial improvement in the patient's function. Once the worker's condition has reached maximum medical improvement, further treatment with opioids is not payable. Opioid treatment for chronic, noncancer pain past the first three months of such treatment without documentation of substantial and progressive continuing improvement is presumed to be not proper and necessary.

W. Va. Code R. § 85-20-61 Denial of payment of opioid medications used to treat chronic, noncancer pain

61.1. Payment for opioid medications may be denied in any of the following circumstances:

• Absent or inadequate documentation;

• Noncompliance with the treatment plan;

• Pain and functional status have not substantially improved after three months of opioid treatment; or • Evidence of misuse or abuse of the opioid medication or other drugs, or noncompliance with the attending physician's request for a drug screen.

W. Va. Code R. § 85-20-62 Payment for nonopioid medications for the treatment of chronic, noncancer pain; Chelation therapy

62.1. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may pay for nonopioid medication for the treatment of chronic, noncancer pain when it is proper and necessary and directly related to a compensable injury. For example, some drugs such as anti-convulsants, anti-depressants, and others have been demonstrated to be useful in the treatment of chronic pain and may be approved when proper and necessary.

62.2. All chelation therapy (oral and IV) requires prior authorization and consultation with a Board Certified Medical Toxicologist, an occupational medicine specialist, or general internist familiar with principals of toxicology, prior to initiation of the therapy. In the rare incident, in which acute encephalopathy occurs as the result of heavy metal toxicity, a consultation with the Poison Control Center will serve as confirmation of the need for such chelation therapy. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, will not reimburse for IV chelation therapy performed in office.

VI. EXPECTED PERIOD OF TIME TO REACH MAXIMUM MEDICAL IMPROVEMENT

W. Va. Code R. § 85-20-63 Expected period of time to reach maximum medical improvement

Pursuant to W. Va. Code §23-4-3b(b), the Commission or Insurance Commissioner, whichever is applicable, hereby incorporates by reference the Medical Disability Advisor, Workplace Guidelines for Disability Duration, Presley Reed, MD (4th Edition) (“Presley Reed Guide”) for purposes of establishing the expected period of time to reach maximum medical improvement and for continued treatment for various injuries and diseases. The requirements, standards, parameters and limitations of the Presley Reed Guide shall have the same force and effect as this Rule. All requirements, standards, parameters and limitations of the Presley Reed Guide are hereby deemed medically reasonable and any requirements, standards, parameters and limitations which exceed those set forth in the Presley Reed Guide are hereby deemed medically unreasonable. A preponderance of evidence, including but not limited to, detailed and documented medical findings, peer reviewed medical studies, and the elimination of causes not directly related to a compensable injury or disease, must be presented to establish that requirements, standards, parameters and limitations in excess of those provided for in the Presley Reed Guide are medically reasonable.

Nothing in this rule shall prohibit employers, private carriers or self-insured employers, whichever is applicable, from using other guidelines for the purpose of establishing the expected period of time and medical treatment protocols necessary to reach maximum medical improvement for various injuries and diseases, as long as such guidelines are part of a managed care plan otherwise approved by the Commission or Insurance commissioner, whichever is applicable, pursuant to W. Va. Code §23-4-3(b)(2)(2003).

VII. RANGE OF PARTIAL DISABILITY AWARDS FOR COMMON INJURIES AND DISEASES

W. Va. Code R. § 85-20-64 Ranges of partial disability awards for common injuries and diseases

64.1. Pursuant to W. Va. Code §23-4-3b(b), the Commission or Insurance Commissioner, whichever is applicable, hereby adopts the following ranges of permanent partial disability for common injuries and diseases. Permanent partial disability assessments shall be determined based upon the range of motion models contained in the Guides Fourth. Once an impairment level has been determined by range of motion assessment, that level will be compared with the ranges set forth below. Permanent partial disability assessments in excess of the range provided in the appropriate category as identified by the rating physician shall be reduced to the within the ranges set forth below:

64.2. Lumbar Spine Impairment: The range of motion methodology for assessing permanent impairment shall be used. However, a single injury or cumulative injuries that lead to a permanent impairment to the Lumbar Spine area of one’s person shall cause an injured worker to be eligible to receive a permanent partial disability award within the ranges identified in Table §85-20-C. The rating physician must identify the appropriate impairment category and then assign an impairment within the appropriate range designated for that category.

64.3. Thoracic Spine Impairment: A single injury or cumulative injuries that lead to a permanent impairment to the Thoracic Spine area of one’s person shall cause an injured worker to be eligible to receive a permanent partial disability award within the ranges identified in Table §85-20-D. The rating physician must identify the appropriate impairment category and then assign an impairment within the appropriate range designated for that category.

64.4. Cervical Spine Impairment: A single injury or cumulative injuries that lead to a permanent impairment to the Thoracic Spine area of one’s person shall cause an injured worker to be eligible to receive a permanent partial disability award within the ranges identified in Table §85-20-E. The rating physician must identify the appropriate impairment category and then assign an impairment within the appropriate range designated for that category.

64.5. Carpal Tunnel Syndrome Impairment: An injured worker who can otherwise show entitlement to a permanent partial disability award for carpal tunnel syndrome shall be eligible to receive a permanent partial disability award of 0%-6% in each affected hand.

64.6. Mental Impairment: Psychiatric disability ranges, along with all other ranges in this Rule, must be strictly adhered to and ratings in excess of the ranges shall be considered evidence of abuse under W. Va. Code §23-4-3c.

64.7. Arm: The statutory impairment for the amputation of an injured worker’s arm is 60%. Accordingly, a single or all cumulative injuries to an individual’s arm shall not total more than 60%. As an example, if an injured worker receives a 6% award for unilateral carpal tunnel, a 30% award for a shoulder injury, and a 10% award for an elbow injury, he shall not be entitled to any future award for injuries sustained to his shoulder in excess of 14%. The “bundling” of awards for injuries to the arm shall not exceed the 60% amputation award.

64.8. Leg: The statutory impairment for the amputation of an injured worker’s leg is 45%. Accordingly, a single or all cumulative injuries to an individual’s leg shall not total more than 45%. As an example, if an injured worker is awarded a 20% award for a permanently impaired hip and then is later awarded a 15% permanent impairment for an injury to his knee, then he shall only be entitled to an additional 5% permanent award in future injuries to his hip, thigh, knee, shin, ankle, foot, or any other part of his leg. The “bundling” of awards for injuries to the leg shall not exceed the 45% amputation award.

W. Va. Code R. § 85-20-65 Adoption of Standards

65.1. Except as provided for in section 66 of this Rule, on and after the effective date of this rule all evaluations, examinations, reports, and opinions with regard to the degree of permanent whole body medical impairment which an injured worker has suffered shall be conducted and composed in accordance with the “Guides to the Evaluation of Permanent Impairment,” (4th ed. 1993), as published by the American Medical Association. If in any particular claim, the examiner is of the opinion that the Guides or the section 64 substitutes cannot be appropriately applied or that an impairment guide established by a recognized medical specialty group may be more appropriately applied, then the examiner’s report must document and explain the basis for that opinion. Deviations from the requirements of the Guides or the section 6 substitutes shall not be the basis for excluding evidence from consideration. Rather, in any such instance such deviations shall be considered in determining the weight that will be given to that evidence. An example of an acceptable recognized medical specialty group’s own guides is the “Orthopedic Surgeons Manual in Evaluating Permanent Physical Impairment.”

65.2. These revised rules are not applicable to any permanent impairment rating examination performed prior to the effective date of these revised rules. Accordingly, the revised rules are not applicable to any reports or opinions based upon those examinations, in whole or in part, which are submitted either before or after the effective date of these revised rules.

65.3. These rules are applicable to examinations and opinions provided to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, by an injured worker’s treating physician pursuant to W. Va. Code §23-4-7a(c)(1).

W. Va. Code R. § 85-20-66 Evidentiary Requirements

66.1. The evidentiary weight to be given to a report will be determined by how well it demonstrates that the evaluation and examination that it memorializes were conducted in accordance with the applicable Guides and that the opinion with regard to the degree of permanent whole body medical impairment suffered by an injured worker was arrived at and composed in accordance with the requirements of the applicable Guides.

66.2. The report must state the factual findings of all tests, evaluations, and examinations that were conducted and must state the manner in which they were conducted so as to clearly indicate their performance in keeping with the requirements of the Guides. For any evaluation and examination of a compensable back injury, the back examination form previously adopted by the Workers’ Compensation Commission must be completed and submitted with the narrative report. A copy of the current edition of the back examination form can be obtained from the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. A report and opinion submitted regarding the degree of permanent whole body medical impairment as a result of a back injury without a completed back examination form shall be disregarded.

66.3. The opinion stated in the report as to the degree of permanent whole body medical impairment must reflect the process of calculation as stated in the applicable Guides so as to demonstrate how the degree of permanent whole body medical impairment was arrived at and calculated.

66.4. To the extent that factors other than the compensable injury may be affecting the injured worker’s whole body medical impairment, the opinion stated in the report must, to the extent medically possible, determine the contribution of those other impairments whether resulting from an occupational or a nonoccupational injury, disease, or any other cause.

66.5. In any claim for occupational pneumoconiosis benefits, for noise induced hearing loss, or for mental and emotional loss, the application of these evidentiary requirements of this section shall be based upon the guidelines referred to below in lieu of the Guides. All of the other requirements of this section shall be accordingly applied.

W. Va. Code R. § 85-20-67 Exceptions to the Guides

The following portions of the applicable Guides or their successor provisions shall not be used in the determination of the degree of permanent impairment that has been suffered by an injured worker for workers’ compensation benefits.

67.1. In claims for occupational pneumoconiosis benefits, the provisions of Chapter 5, “The Respiratory System,” are exempted from this rule. The provisions of the statute related to occupational pneumoconiosis, rules adopted in accordance with the statute, and policies and procedures adopted by the occupational pneumoconiosis board adequately and separately control the determination of the degree of permanent impairment suffered by such an injured worker. The occupational pneumoconiosis board may, in any given case and in its discretion, utilize the Guides to the extent the board deems appropriate.

67.2. In claims for noise induced hearing loss, the provisions of section 9.1, Chapter 9, “Ear, Nose, Throat, and Related Structures,” are exempted from this rule. The applicable exempt legislative rule has been promulgated for such claims.

67.3. In claims for mental and emotional loss, the provisions of chapter 14, “Mental and Behavioral Disorders,” are exempted from this rule. This rule shall be utilized.

67.4. In those claims affected by the provisions of W. Va. Code §23-4-6(f), the degree of disability stated there shall be applied.

67.5. In those claims affected by the provisions of W. Va. Code §23-4-6(m), the conclusive presumption of total disability stated there shall be applied.

W. Va. Code R. § 85-20-68 Payment for Evaluations

The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall not make payment to any impairment examiner whose reports, opinions, examinations, or evaluations are not conducted, performed, and composed in accordance with this Rule. In the event payment was made prior to a determination that the report, opinion, examination, or evaluation was not conducted, performed, or composed in accordance with this Rule, then the amount so paid shall be recovered from the examiner either by way of a direct repayment to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, or by way of an offset against any future sums that may be owed by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, to the examiner for any services rendered for or to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, or for or to an injured worker. A later submission or supplement to the report, which demonstrates compliance with these rules, shall serve to permit such payment.

W. Va. Code R. § 85-20-69 Violation and Penalties:

Without limiting the general nature of various statutes respecting criminal fraud, and by way of illustration and not in limitation, the following are deemed unlawful acts and practices:

a. Billing for services not actually performed;

b. Billing for expenses not actually incurred;

c. Billing services on dates other than the date on which they were actually performed;

d. Offering consideration of any kind, including gifts, services or gratuities to Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, employees in exchange for or as a past reward for referring cases to the provider;

e. Failing to close claims at the earliest practicable date when the injured worker can no longer benefit from such services;

f. Providing false information in any statement to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, or forging or falsifying any record required to be kept by these Rules or any other statute or rule governing providers; and g. "Rolling in" unreimbursable time or expenses by adding hours for billable time or expenses.

All providers and employers shall retain for five (5) years and provide to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, on request and without a subpoena hard copies of the source underlying any bill, invoice, report, etc. submitted to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, by electronic or other means.

W. Va. Code R. § 85-20-70 Injured Employee's Responsibilities Concerning Medical Examination and Treatment. (Effective Date: -- February 1, 2005.)

70.1. Examination and treatment.

The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may order an injured employee to report for examination and may further order him to undergo such treatment or hospitalization as is indicated in the particular case. It shall be the duty of the injured employee to comply fully and promptly with any such order issued by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

70.2. Violation of rule.

a. If violation of any provision of this rule, or refusal to comply with any order of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, issued as provided herein, should result in an increase in the duration of temporary disability or in the degree of permanent disability, such violation or refusal will be considered in determining the compensation, if any, to be awarded and no compensation will be awarded for extension or increase of disability caused thereby.

b. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may suspend benefits being paid to a claimant if the claimant refuses, without good cause, to undergo or fully participate in the examinations or needed treatments provided for in W. Va. Code §23-4-7a. Good cause shall consist of the following:

1. Compelling evidence that the examination or treatment would have little, if any, positive effect on the claimant’s injury;

2. Compelling evidence that no ordinarily prudent and reasonable person would have submitted to the examination or needed treatment;

3. Compelling evidence that the examination or treatment would pose a danger to the life or health of the claimant or require extraordinary suffering;

4. A consensus of medical opinions establishing that the examination or treatment would not effect a cure or would not at least improve the likelihood that the claimant could return to gainful employment; and 5. Compelling evidence that the prognosis for success and recovery were unreasonably low.

c. Failure to attend a single scheduled examination or treatment shall not be grounds to suspend benefits. However, failure to attend two (2) or more consecutively scheduled examinations or treatments without clear justification, regardless if the examinations or treatments were scheduled for a related purpose, may, in the Commission’s, Insurance Commissioner’s, private carrier’s or self-insured employer’s, whichever is applicable, sole discretion, constitute grounds to suspend benefits. Also, a pattern of failing to attend scheduled examinations or treatments shall constitute grounds for the suspension of benefits.

d. A claimant whose benefits are suspended under this rule shall not be entitled to benefits from the date the relevant examination or treatment was not undergone until such time as the examination or treatment is undergone and notice of such is provided to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. If benefits are re-instated, any overpayment will be deducted from the re-instated benefits at a reasonable rate until the overpayment is recouped. The unpaid balance of the overpayment, if any, will be recovered from any future award to the claimant.

e. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall enter a protestable order notifying the claimant of the suspension of benefits and shall serve the order on all of the parties to the claim.

W. Va. Code R. § 85-20-71 Severability

If any provision of this Rule or the application thereof to any entity or circumstance shall be held invalid, such invalidity shall not affect the provisions or the applications of this Rule which can be given effect without the invalid provisions or application and to this end the provisions of this rule are declared to be severable.

TABLE 85-20A. Impairment of Pulmonary Function. Page 1 of 3.

a. The following table will be used as an indicator of impairment of pulmonary function if any of the acceptable values appear in the percentage of impairment column:

% IMPAIRMENT:

0 10 15 20 25 30 40 50 60 TOTAL

FVC % PRED. 80 75 70 67 64 61 58 55 52 50

FEV1.% PRED. 75 73 70 67 64 61 58 55 52 50

FEV1./FVC 75 73 70 67 64 61 56 51 48 45

MVV % PRED. 80 75 70 67 64 61 58 55 52 50

PaCO2 Pa02 Values Equal to or Less Than 30 or below 85 81 78 75 73 70 68 67 66 65 31 84 80 77 74 72 69 67 66 65 64 32 83 79 76 73 71 68 66 65 64 63 33 82 78 75 72 70 67 65 64 63 62 34 81 77 74 71 69 66 64 63 62 61 35 80 76 73 70 68 65 63 62 61 60 36 79 75 72 69 67 64 62 61 60 59 37 78 74 71 68 66 63 61 60 59 58 38 77 73 70 67 65 62 60 59 58 57 39 76 72 69 66 64 61 59 58 57 56 40 or above 75 71 68 65 63 60 58 57 56 55 Impairment 0% 10-20% 21-50% 51-100% DL/VA > or = 80%pred 60-79% pred 41-59% pred < or = 40%pred TABLE 85-20A. Impairment of Pulmonary Function. (page 2)

(b) Exercise p02 values that rise above the resting p02 values will indicate a lesser degree of impairment of pulmonary function, and if they are less than the resting values will indicate a greater degree of impairment of pulmonary function.

(c) The results of any medically acceptable tests or procedures reported by a physician which are not addressed in this table but which tend to demonstrate the presence or absence of pneumoconiosis or sequela of pneumoconiosis or the presence or absence of a respiratory pulmonary impairment may be submitted and given appropriate consideration (Airway Resistance, Oximetry, and A-a gradient, etc.). It is also important that the Occupational Pneumoconiosis Board use all clinical history and physical findings that would enhance or detract from any percentage of impairment in the above table.

(d) Where an employee has a definitely ascertainable impairment which is not resulting from occupational pneumoconiosis, but which is contributing to the employee's over-all pulmonary impairment, such impairment, the effect thereof, and any aggravation thereof will not be taken into consideration in fixing the amount of compensation allowed for occupationalpneumoconiosis, and such compensation will be awarded only in the amount that would have been allowable had such other impairment not been present.

(e) The degree of such impairment attributable to a cause that is not occupational pneumoconiosis may be established at any time by competent medical or other evidence. Competent medical or other evidence will include reasoned medical judgment that is based on the medical record in a given claim and on generally accepted medical science.

(f) The method of establishing impairment attributable to a cause that is not occupational pneumoconiosis need not be a matter of exact mathematical or scientific formulation, but should based upon the entirety of the evidentiary record, including but not limited to: 1) a recognition of the magnitude and type of impairment that is typically associated with different types of pneumoconiosis; 2) a recognition of the magnitude and type of impairment typically associated with medical conditions other than pneumoconiosis that cause pulmonary impairment; 3) a recognition of the type, intensity and duration of the physical insults that have given rise to any pneumoconiosis and other causes of pulmonary impairment; and 4) a recognition that where two or more medical conditions likely to cause pulmonary impairment exist in combination, every effort should be made to fairly allocate responsibility for any over-all pulmonary impairment among the several conditions. (g) Cigarette and cigar smoking are recognized by the medical community as the principal causes of pulmonary impairment and primary lung cancers in the general population. Special attention will be given to assuring that, wherever possible, pulmonary impairment caused by cigarette or cigar smoking is not included in awards for impairment cause by occupational pneumoconiosis.

TABLE §85-20-A. Impairment of Pulmonary Function (page 3)

I. Ventilatory Function Tests A. FVC – Forced Vital Capacity – Three adequate trials are required for a valid test. The two best curves must be within 7%. The third curve should be of similar shape. The largest FVC is to be reported.

B. FEV1 – Forced Expiratory Volume in one second – The largest FEV1 is to be reported. The two best FEV1 measurements should be within 7%. Extrapolated volume must be less that 10% of the FVC.

C. MVV – Maximum Voluntary Ventilation – Must approximate the FEV1 X 40 to within 80% to be a valid test.

D. Tracings – The three best curves from the FVC maneuver must be provided. Multiple trials may be illustrated to demonstrate non-reproducibility.

Tracings which reflect non-valid studies should show all trials to indicate multiple attempts to achieve validity.

E. Reports shall indicate the location of test, date and time along with name of technician or other medical personnel performing the test.

Report shall include the patient/claimant’s last name, first and middle initial, social security number, current age in years, gender, height measurement to the nearest ¼ inch, and weight in pounds.

F. Test results are to be reported in BTPS.

G. Calibration reports from the date of testing should also be provided.

H. Kory nomogram is to be used for predicted values for spirometry.

I. Facilities providing services for the Commission or Insurance Commissioner, whichever is applicable, may be subject to inspection by an appointee of the Commission or Insurance Commissioner, whichever is applicable. Pulmonary Function Laboratories should be staffed with properly trained personnel, have adequate equipment with documented calibration and quality control, and access to related files. Personnel performing spirometry must possess a minimum of a NIOSH training certificate. Personnel performing more complex pulmonary function testing should possess a minimum of CPFT (Certified Pulmonary Function Technician) with an RPFT (Registered Pulmonary Function Technologist) preferred.

II. Arterial Blood Gas A. Reports shall indicate resting and/or exercise.

B. If resting only, there should be a noted contraindication to exercise.

C. Reports shall indicate the location, altitude, and barometric pressure of testing facility, date and time along with name of technician or other medical personnel performing the test.

D. Facilities performing blood analysis must provide evidence of compliance with CLIA regulations and be subject to inspection by authorized personnel.

III. Chest X-ray A. Singleview – PA – Upright at full inspiration on a 14 x 17 film is required.

B. Film should be identified with location of testing facility, date, patient name, SSN, and date of birth.

C. Original films should be provided for review.

D. Facilities performing radiographic services must provide evidence of compliance with state and federal laws regulating such facilities and be subject to inspection by authorized personnel.

TABLE §85-20-B. Schedule of Controlled Substances.

a. The Controlled Substances Act of 1970 regulates the manufacturing, distribution and dispensing of drugs that have abuse potential. The Drug Enforcement Administration (DEA) within the US Department of Justice is the chief federal agency responsible for enforcement.

A. DEA Schedules: Drugs under jurisdiction of the Controlled Substances Act are divided into five schedules based on their potential for abuse and physical and psychological dependence. All controlled substances listed in Drug Facts and Comparisons are identified by schedule as follows:

Schedule I (C-I) High abuse potential and no accepted medical use (e.g., heroin, marijuana, LSD).

Schedule II (C-II) High abuse potential with severe dependence liability (eg, narcotics, amphetamines, dronabinol, some barbiturates).

Schedule III (C-III) Less abuse potential than schedule II drugs and moderate dependence liability (eg, nonbarbiturate sedatives, nonamphetamine stimulants, limited amounts of certain narcotics).

Schedule IV (C-IV) Less abuse potential than schedule III drugs and limited dependence liability (eg, some sedatives, antianxiety agents, non-narcotic analgesics).

Schedule V (C-V) Limited abuse potential. Primarily small amounts of narcotics (codeine) used as antitussives or antidiarrheals. Under federal law, limited quantities of certain c-v drugs may be purchased without a prescription directly from a pharmacist if allowed under specific state statutes. The purchaser must be at least 18 years of age and must furnish suitable identification. All such transactions must be recorded by the dispensing pharmacist.

TABLE §85-20-C. PPD Ranges for Lumbar Spine Impairments Criteria for Rating Impairment Due to Lumbar Spine Injury Lumbar Category I 0% Impairment of the Whole Person Lumbar Category II 5%-8% Impairment of the Whole Person Lumbar Category III 10%-13% Impairment of the Whole Person Lumbar Category IV 20%-23% Impairment of the Whole Person Lumbar Category V 25%-28% Impairment of the Whole Person No significant clinical findings, no observed muscle guarding or spasm, no documentable neurologic impairment, no documented alteration in structural integrity and no other indication of impairment related to injury or illness; no fractures Clinical history and examination findings are compatible with a specific injury; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion, or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity and no significant radiculopathy individual had a clinically significant radiculopathy and has an imaging study that demonstrates a herniated disk at the level and on the side that would be expected based on the previous radiculopathy, but no longer has the radiculopathy following conservative treatment fractures: (1) less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation (not developmental spondylolysis) that has healed without alteration of motion segment integrity; (3) a spinous or transverse process fracture with displacement without a vertebral body fracture, which does not disrupt the spinal canal Significant signs of radiculopathy, such as dermatormal pain and/or in a dermatomal distribution, sensory loss, loss of relevant reflex(es), loss of muscle strength or measured unilateral atrophy above or below the knee compared to measurements on the contralateral side at the same location; impairment may be verified by electrodiagnostic findings

history of a herniated disk at the level and on the side that would be expected from objective clinical findings, associated with radiculopathy, or individuals who had surgery for radiculopathy but are now asymptomatic fractures: (1) 25% to 50% compression of one vertebral body; (2) posterior element fracture with displacement disrupting the spinal canal; in both cases, the fracture has healed without alteration of structural integrity Loss of motion segment integrity defined from flexion and extension radiographs as at least 4.5 mm of translation of one vertebra on another or angular motion greater than 15° at L1-2, L2-3 and L3-4, greater than 20° at L4-5, and greater than 25° at L5-S1 (Figure 15-3); may have complete or near complete loss of motion of a motion segment due to developmental fusion, or successful or unsuccessful attempt at surgical arthrodesis fractures: (1) greater than 50% compression of one vertebral body without residual neurologic compromise Meets the criteria of DRE lumbosacral categories III and IV; that is, both radiculopathy and alteration of motion segment integrity are present; significant lower extremity impairment is present as indicated by atrophy or loss of reflex(es), pain and/or sensory changes within an anatomic distribution (Dermatomal), or electromyographic findings as stated in lumbosacral category III and alteration of spine motion segment integrity as defined in lumosacral category IV fractures: (1) greater than 50% compression of one vertebral body with unilateral neurologic compromise TABLE §85-20-D. PPD Ranges for Thoracic Spine Injury Criteria for Rating Impairment Due to Thoracic Spine Injury Thoracic Category I 0% Impairment of the Whole Person Thoracic Category II 5%-8% Impairment of the Whole Person Thoracic Category III 15%-18% Impairment of the Whole Person Thoracic Category IV 20%-23% Impairment of the Whole Person Thoracic Category V 25%-28% Impairment of the Whole Person No significant clinical findings, no observed muscle guarding, no documentable neurologic impairment, no documented changes in structural integrity and no other indication of impairment related to injury or illness; no fractures

History and examination findings are compatible with a specific injury or illness; findings may include significant muscle guarding or spasm observed at the time of the examination, asymmetric loss of range of motion (dysmetria), or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of motion segment integrity herniated disk at the level and on the side that would be expected from objective clinical findings, but without radicular signs following conservative treatment fractures: (1) less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation that has healed without alteration of motion segment integrity or radiculopathy; (3) a spinous or transverse process fracture with displacement, but without a vertebral body fracture Ongoing neurologic impairment of the lower extremity related to a thoracolumbar injury, documented by examination of motor and sensory functions, reflexes or findings of unilateral atrophy above or below the knee related to no other condition; impairment may be verified by electrodiagnostic testing clinically significant radiculopathy, verified by an imaging study that demonstrates a herniated disk at the level and on the side that would be expected from objective clinical findings; history of radiculopathy, which has improved following surgical treatment fractures: (1) 25% to 50% compression fracture of one vertebral body; (2) posterior element fracture with mild displacement disrupting the canal; in both cases the fracture has healed without alteration of structural integrity; differentiation from a congenital or developmental condition should be accomplished, if possible, by examining preinjury roentgenograms, if available, or by a bone scan performed after the onset of the condition Alteration of motion segment integrity or bilateral or multilevel radiculopathy; alteration of motion segment integrity is defined from flexion and extension radiographs as translation of one vertebra or another of more than 2.5 mm; radiculopathy as defined in thoracic category III need not be present if there is alteration of motion segment integrity; if an individual is to be placed in DRE thoracic category IV due to radiculopathy, the latter must be bilateral or involve more than one level fractures: (1) more than 50% compression of one vertebral body without residual neural compromise Impairment of the lower extremity as defined in thoracolumbar category III and loss of structural integrity as defined in thoracic category IV fractures: (1) greater than 50% compression of one vertebral body with neural motor compromise but not bilateral involvement that would qualify the individual for corticospinal tract evaluation TABLE §85-20-E. PPD Ranges for Cervical Disorders Table 15-5 Criteria for Rating Impairment Due to Cervical Disorders Cervical Category I 0% Impairment of the Whole Person Cervical Category II 5%-8% Impairment of the Whole Person Cervical Category III 15%-18% Impairment of the Whole Person Thoracic Category IV 25%-28% Impairment of the Whole Person Thoracic Category V 35%-38% Impairment of the Whole Person No significant clinical findings, no muscular guarding, no documentable neurologic impairment, no significant loss of motion segment integrity and no other indication of impairment related to injury or illness; no fractures Clinical history and examination findings are compatible with a specific injury; findings may include muscle guarding or spasm observed at the time of the examination by a physician, asymmetric loss of range of motion or nonverifiable radicular complaints, defined as complaints of radicular pain without objective findings; no alteration of the structural integrity individual had clinically significant radiculopathy and an imaging study that demonstrated a herniated disk at the level and on the side that would be expected based on the radiculopathy, but has improved following nonoperative treatment fractures: (1) less than 25% compression of one vertebral body; (2) posterior element fracture without dislocation that has healed without loss of structural integrity or radiculopathy; (3) a spinous or transverse process fracture with displacement Significant signs of radiculopathy, such as pain and/or sensory loss in a dermatomal distribution, loss of relevant reflex(es), loss of muscle strength, or unilateral atrophy compared with the unaffected side, measured at the same distance above or below the elbow; the neurologic impairment may be verified by electrodiagnostic findings individual had clinically significant radiculopathy, verified by an imaging study that demonstrates a herniated disk at the level and on the side expected from objective clinical findings with radiculopathy or with improvement of radiculopathy following surgery fractures: (1) 25% to 50% compression of one vertebral bogy; (2) posterior element fracture with displacement disrupting the spinal canal; in both cases the fracture is healed without loss of structural integrity; radiculopathy may or may not be present; differentiation from congenital and developmental conditions may be accomplished, if possible, by examining preinjury roentgenograms or a bone scan performed after the onset of the condition Alteration of motion segment integrity or bilateral or multilevel radiculopathy; alteration of motion segment integrity is defined from flexion and extension radiographs as at least 3.5 mm of translation of one vertebra on another, or angular motion of more than 11° greater than at each adjacent level (Figures 15-3a and 15-3b); alternatively, the individual may have loss of motion of a motion segment due to a developmental fusion or successful or unsuccessful attempt at surgical arthrodesis; radiculopathy as defined in cervical category III need not be present if there is alteration of motion segment integrity fractures: (1) more than 50% compression of one vertebral body without residual neural compromise Significant upper extremity impairment requiring the use of upper extremity external functional or adaptive device(s); there may be total neurologic loss at a single level or severe, multilevel neurologic dysfunction fractures: structural compromise of the spinal canal is present with severe upper extremity motor and sensory deficits but without lower extremity involvement

Appendix §85-20-F The Physical Demands Strength Rating, as defined in the Dictionary of Occupational Titles, is expressed by one of five terms: Sedentary, Light, Medium, Heavy and Very Heavy. In order to determine the overall rating, the injured worker’s abilities in the following activities must be considered: Standing, Walking, Sitting, Lifting, Carrying, Pushing, Pulling and Controls operation.

Standing means remaining on one's feet in an upright position at a work station without moving about.

Walking means moving about on foot.

Sitting means remaining in a seated position.

Lifting means raising or lowering an object from one level to another (includes upward pulling).

Carrying means transporting an object, usually holding it in the hands or arms, or on the shoulder.

Pushing means exerting force upon an object so that the object moves away from the force (includes slapping, striking, kicking and treadle actions).

Pulling means exerting force upon an object so that the object moves toward the force (includes jerking).

Lifting, pushing and pulling are evaluated in terms of both intensity and duration. Consideration is given to the weight handled, position of the worker's body and the aid given by helpers or mechanical equipment. Carrying most often is evaluated in terms of duration, weight carried and distance carried.

Controls entail the use of one or both arms or hands (hand/arm) and/or one or both feet or legs (foot/leg) to move controls on machinery or equipment. Controls include but are not limited to buttons, knobs, pedals, levers and cranks.

Occasionally means an activity or condition exists up to one third (1/3) of the time.

Frequently means an activity or condition exists from one-third (1/3) up to two- thirds (2/3) of the time.

Constantly means an activity or condition exists two-thirds (2/3) or more of the time.

Sedentary Work - Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.

Light Work - Exerting up to 20 pounds of force occasionally and/or up to 10 pounds of force frequently and/or a negligible amount of force constantly to move objects. Physical demand requirements are in excess of those for Sedentary Work. Even though the weight lifted may be only a negligible amount, a job should be rated Light Work: (1) when it requires walking or standing to a significant degree; or (2) when it requires sitting most of the time but entails pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight of those materials is negligible. NOTE: The constant stress and strain of maintaining a production rate pace, especially in an industrial setting, can be and is physically demanding of a worker even though the amount of force exerted is negligible.

Appendix §85-20-F (page 2)

Medium Work - Exerting 20 to 50 pounds of force occasionally and/or 10 to 25 pounds of force frequently and/or greater than negligible up to 10 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Light Work.

Heavy Work - Exerting 50 to 100 pounds of force occasionally and/or 25 to 50 pounds of force frequently and/or 10 to 20 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Medium Work.

Very Heavy Work - Exerting in excess of 100 pounds of force occasionally and/or in excess of 50 pounds of force frequently and/or in excess of 20 pounds of force constantly to move objects. Physical Demand requirements are in excess of those for Heavy Work.

Additional physical demands of work, as defined in the Revised Handbook for Analyzing Jobs, include Climbing, Balancing, Stooping, Kneeling, Crouching, Crawling, Reaching, Handling, Fingering and Feeling.

Climbing means ascending or descending ladders, stairs, scaffolding, ramps, poles and the like, using feet and legs or hands and arms. Body agility is emphasized.

Appendix §85-20-F (page 3)

Balancing means maintaining body equilibrium to prevent falling when walking, standing, crouching, or running on narrow, slippery, or erratically moving surfaces; or maintaining body equilibrium when performing gymnastic feats.

Stooping means bending the body downward and forward by bending spine at the waist, requiring full use of the lower extremities and back muscles.

Kneeling means bending the legs at knees to come to rest on knee or knees.

Crouching means bending the body downward and forward by bending legs and spine.

Crawling means moving about on hands and knees or hands and feet.

Reaching means extending hand(s) and arm(s) in any direction.

Handling means seizing, holding, grasping, turning, or otherwise working with hand or hands. Fingers are involved only to the extent that they are an extension of the hand, such as to turn a switch or shift automobile gears.

Fingering means picking, pinching, or otherwise working primarily with fingers rather than with the whole hand or arm as in handling.

Feeling means perceiving attributes of objects, such as size, shape, temperature, or texture, by touching with skin, particularly that of fingertips.

EXHIBIT A

PSYCHIATRIC DIAGNOSES (WITH CORRESPONDING INTERNATIONAL CLASSIFICATION OF DISEASES, NINTH REVISION CODES) NOT CONTRIBUTED TO BY A WORK-RELATED INJURY THE ONSET OF THE FOLLOWING DIAGNOSES ARE, BY DEFINITION, NOT SIGNIFICANTLY CONTRIBUTED TO BY A WORK-RELATED INJURY UNLESS THE DISORDER ENDS IN THE PHRASE “DUE TO A GENERAL MEDICAL CONDITION” WHERE THE GENERAL MEDICAL CONDITION IS CAUSED BY THE WORK RELATED INJURY. ALTHOUGH THESE DIAGNOSES MAY BE PRESENT IN AN INDIVIDUAL AND THESE DIAGNOSES SHOULD BE CONSIDERED IN APPORTIONMENT, UNLESS SPECIFICALLY EXCEPTED IN WRITING, THESE DIAGNOSES SHOULD NOT RECEIVE AN IMPAIRMENT RATING.

Disorders Usually First Diagnosed in Infancy, Childhood, or Adolescence Mental Retardation (317, 318.x, 319)

Learning Disorders (315.x, 315.xx)

Motor Skills Disorder (315.4)

Communication Disorders (315.xx, 307.x)

Pervasive Development Disorders (299.x, 299.xx)

Attention-Deficit and Disruptive Behavior Disorders (314.xx, 314.9)

Feeding and Eating Disorders of Infancy or Early Childhood (307.xx)

Tic Disorders (307.xx)

Elimination Disorders (307.x, 787.6)

Other Disorders of Infancy, Childhood, or Adolescence (309.21, 313.89, 307.3, 313.9)

Delirium, Dementia, and Amnestic and Other Cognitive Disorders All (except for Cognitive Disorder, NOS) (294.xx, 290.xx, 294.1, 294.8, 293.89)

Substance-Related Disorders All (303.xx, 291.x, 291.xx, 304.xx, 305.x, 305.xx, 292.xx, 292.x)

Schizophrenia and Other Psychotic Disorders All (295.xx, 297.x, 298.x, 293.xx)

Mood Disorders All Bipolar Disorders (296.0x, 296.4x, 296.5x, 296.6x, 296.7, 296.89, 296.80, 296.90)

Cyclothymic Disorder (301.13)

Anxiety Disorders Social Phobia (300.23)

Obsessive-Compulsive Disorder (300.3)

Generalized Anxiety Disorder (300.02)

Somatoform Disorders All (300.8x, 300.11, 307.xx, 300.7, 300.82) (except Pain Disorder)

Factitious Disorders All (300.16, 300.19)

Dissociative Disorders All (300.12, 300.13, 300.14, 300.6, 300.15) (except Dissociative Disorder, NOS)

Sexual and Gender Identity Disorders All (302.7x, 306.51, 302.4, 302.8x, 302.2, 302.3, 302.9, 302.6, 302.85, 302.6, 302.9)

Eating Disorders All (307.1, 307.51, 307.50)

Sleep Disorders All (307.4x, 347, 780.59)

Impulse-Control Disorders Not Elsewhere Classified All (312.3x)

Personality Disorders All (301.x, 301.xx)

Other Conditions That May Be A Focus Of Clinical Attention (316, All “V” Codes, 780.9, 313.82, 300.9, 799.9)

EXHIBIT B

WEST VIRGINIA WORKERS’ COMPENSATION DIVISION

Impairment Guideline for RATING Psychiatric Impairment Exhibit B shall be used to determine a claimant's psychiatric impairment rating using the classification consistent with the AMA Guides to the Evaluation of Permanent Impairment, Fifth Edition, in conjunction with the Axis V Global Assessment of Functioning Scale (GAF, DSM-IV-TR 2000, page 34), the claimant's treatment needs, and functional status. Axis V refers only to psychological, occupational, and social functioning and the examiner must NOT include impairment in functioning as a result physical limitations in the formulation of the GAF (GAF, DSM-IV-TR 2000).

Disorders believed to have resulted from brain injury, such as cognitive disorders, should NOT be rated using this guideline, but should be evaluated according to relevant sections of Chapter 4 of the AMA Guides to the Evaluation of Permanent Impairment, Fourth Edition.

The diagnoses of Pain Disorder and Dissociative Disorder, NOS, while important in the presentation and treatment of the underlying physical condition, should not receive an impairment rating.

The impairment percentage may only be determined after the claimant has reached maximum medical improvement. Rows 1-5 should guide the examiner to an impairment classification in row 6 with the corresponding whole person impairment percentage range in row 7. Within each class, the examiner must justify the specific choice of rating along the range based on information in rows 1-5 to formulate an overall impairment rating. This rating should then be apportioned to account for pre-existing or non work-related contributors as noted in the Guideline for Psychiatric Independent Medical Examination – Report Online (Exhibit C).

1. GAF

2. Symptom Severity 3. Level of Functioning 4. Treatment Needs 5. ADLs, Social Functioning, Concentration, Adaptation 6. Impairment Classification 7. Whole person impairment 100-91 No symptoms.

Superior functioning in a wide range of activities, life’s problems never seem to get out of hand, is sought out by others because of his or her many positive qualities.

None or infrequent outpatient treatment No Impairment Class 1: No Impairment 0% 90-81 Absent or minimal symptoms (e.g., mild anxiety before an exam). Generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members).

Good functioning in all areas, interested and involved in a wide range of activities, socially effective.

None or infrequent outpatient treatment No Impairment Class 1: No Impairment 0% 80-71 If symptoms are present, they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument).

No more than slight impairment in social or occupational functioning (e.g., temporarily falling behind in work).

None or infrequent outpatient treatment No Impairment Class 1: No Impairment 0% 70-61 Some mild symptoms (e.g., depressed mood and mild insomnia). -OR- Impairment levels are compatible with most useful functioning. Some difficulty in social or occupational functioning (e.g., occasional absences or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

None or infrequent outpatient treatment Impairment levels are compatible with most useful functioning Class 2: Minimal Impairment 0-5% 60-51 Moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) -OR- Impairment levels are compatible with some, but not all, useful functioning. Moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with co-workers).

Continuous outpatient treatment Impairment levels are compatible with some, but not all, useful functioning Class 3: Mild Impairment 6-14% 50-41 Serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting). -OR- Impairment levels significantly impede useful functioning. Requires direction and supervision in the performance of ADL's. Any serious impairment in social or occupational functioning (e.g., no friends, unable to keep a job).

Intensive outpatient treatment, day hospital, occasional to frequent inpatient hospitalization.

Impairment levels significantly impede useful functioning Class 4: Moderate Impairment 15-29% 40-31 Some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant). -OR- Major impairment in several areas, such as work, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family and is unable to work).

Intensive outpatient treatment, day hospital, occasional to frequent inpatient hospitalization.

Impairment levels significantly impede useful functioning Class 4: Moderate Impairment 15-29% 30-21 Behavior is considerably influenced by delusions or hallucinations - OR - serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation)

Inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends).

Permanently in assisted living to complete institutionalization Impairment levels preclude useful functioning Class 5a: Severe Impairment 30-49% 20-11 Some danger of hurting self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) -OR- Gross impairment in communication (e.g., largely incoherent or mute)

Occasionally fails to maintain minimal personal hygiene (e.g., smears feces).

Permanently in assisted living to complete institutionalization Impairment levels preclude useful functioning Class 5b: Very Severe Impairment 50-70% 10-0 Persistent danger of severely hurting self or others (e.g., recurrent violence) -OR- serious suicidal act with clear expectation of death.

Persistent inability to maintain minimal personal hygiene.

Permanently in assisted living to complete institutionalization Impairment levels preclude useful functioning Class 5b: Very Severe Impairment 50-70% EXHIBIT C WEST VIRGINIA WORKERS’ COMPENSATION COMMISSION GUIDELINE FOR PSYCHIATRIC INDEPENDENT MEDICAL EXAMINATION – REPORT OUTLINE The following is an outline of the standard psychiatric independent medical examination report. The bolded items should be addressed in every report to ensure consistency. Although there is no substitute for quality clinical assessment, the areas subsumed under each bolded section should also be addressed when possible. Note that each area allows for both subjective and objective data, therefore attention to the application of data to Workers’ Compensation issues should be emphasized. The italicized language represents commentary to aid in clarification of the outline.

I Identifying Data Claimant Name:

Social Security Number:

Date of Birth:

Claim Number(s):

Date of Injury:

Date of Interview:

Date of Report:

II Consent Be sure to include a statement about the following: the nature and purpose of the examination, that the examiner is a psychiatrist, that the examination is for the purpose of WV Workers’ Compensation Division, that there is an inherent lack of confidentiality, that a written report will be issued to the WV Workers’ Compensation Division, that the examiner may be asked to provide information in court or directly to the WV Workers’ Compensation Division that the examiner will not be treating the claimant, but may express management recommendations that may influence their care indirectly, and that no physician-patient relationship will be established.

III Chief Complaint IV History of Present Illness A. Injury Provide the claimant’s account of the injurious event. Include the following:

1. Employer name 2. Position or job title 3. Duties and responsibilities, including supervisory duties 4. Whether injury occurred in the usual course of employment 5. Whether claimant was working at an outside position (that is, not with the employer) or was self employed 6. Events leading up to injury 7. Events of injury including:

a. How injury occurred b. Whether others were injured c. Whether there were any witnesses to injury 8. Events following injury, including:

a. When medical care was sought b. Where medical care was sought c. Means of arriving to medical care 9. Whether, at time of interview, physical symptoms are worse, better, or same since injury.

B. Psychiatric Information For each diagnosis, include the following information:

A. Name of diagnosis with modifiers, specifiers, remission status and subtypes as per the most recent edition of the Diagnostic and Statistical Manual of Disorders of the American Psychiatric Association B. Criterion-based support for the diagnosis C. Associated support for diagnosis including:

1. Non-criteria signs and symptoms 2. Diagnoses made by other clinicians that support the current diagnosis.

D. Onset date of diagnosis when minimal criteria were met (estimate if necessary)

E. Course of diagnosis since onset to time of interview F. Severity of diagnosis around time of interview (mild, moderate, severe)

G. Past management, with outcomes including:

1. Medications or other biological treatment with doses and duration 2. Psychological treatments 3. Social treatments 4. Compliance with management H. Whether symptoms of diagnosis impair ability to work, If so, describe how.

I. Describe any past psychiatry history not otherwise accounted for by all above diagnoses, include: 1 Impatient treatment 2. Outpatient treatment 3. Consultations 4. Marital/family/pastoral counseling 5. AA/NA/rehab/detox 6. Psychotropic meds V. Personal and Social History A. Social Information 1. Residence history 2. Marriage history 3. Stressors history – note all pertinent stressors that have occurred since injury 4. “Pursuit of everyday living” history 1. Report life circumstances, activities, hobbies and interests prior to injury 2. Report if any life circumstances, activities, hobbies or interests have been affected by the psychiatric diagnoses above B. Education Information C. Employment Information 1. List all prior positions, including duration 2. Discuss if claimant has been terminated from any job 3. Discuss if claimant has been laid-off from any job 4. Discuss if claimant has entered resignations under duress 5. Discuss if claimant has received any written reprimands 6. If in military service, report if claimant has received any Article 15’s, and what type of discharge claimant received D. Legal Information Include:

1. Criminal history, charges, incarceration 2. Non-Workers’ Compensation civil litigation 3. Prior Workers’ Compensation claims VI. Review of Systems 1. Provide a review of the claimant’s general organ and neurological systems.

VII. Past Medical History A. List documented diagnoses B. List claimant-reported diagnoses C. List past surgeries D. Discuss any head injuries E. Discuss any seizure history F. Report signs and symptoms at time of interview G. List past psychoactive medications and analgesics, if not already reported H. List current medications VIII Family Medical and Family Psychiatric History IX Mental Status Exam X Summary of Other Sources of Information Include pertinent psychiatric information from the following sources:

A. Documents B. Other interviews (for example, of spouse, coworkers or other clinicians)

C. Psychological testing D. Data E. Other XI Psychiatric Diagnostic List Provide psychiatric diagnoses at the time of the interview XII Opinions For each of the following areas, report only those opinions held with reasonable medical certainty and support with an explanation.

A. Diagnoses Offer a statement that each of the above psychiatric diagnoses (in Section XI) is present with reasonable medical certainty.

For each separate diagnosis in A, report information in areas B-F.

B. Maximum medical improvement For each diagnosis, report whether the claimant has reached maximum medical improvement for that specific diagnosis. Support this opinion. If the claimant has been significantly noncompliant with management recommendations, then state that no opinion is offered with regard to that specific diagnosis about maximum medical improvement.

C. Disability Report if the signs or symptoms of the specific diagnosis alone render the person disabled for the purposes of working in the same or similar position as was held at the time of the injury. If disabled, support this opinion discussing how each sign or symptom impairs work efficiency and the ability to be employed. If the claimant has not reached maximum medical improvement for this specific diagnosis, but is disabled, estimate the time to recovery for maximum medical improvement.

D. Impact on Pursuit of Everyday Living Offer an opinion, for each specific diagnosis, about how that diagnosis and its symptoms affect the claimant’s pursuit of everyday living. Support this opinion with a discussion of the claimant’s pre-and post-injury life circumstances, activities, hobbies and interest. The opinion should distinguish between psychiatric and non-psychiatric reasons for changes in the claimant’s pursuit of everyday living. Offer an estimate as to the degree of overall impact on pursuit of everyday living as mild, moderate or severe in intensity.

E. Causation and Appointment For each specific diagnosis, offer an opinion with regard to the causation of that diagnosis. A statement of causation should relate the onset and presentation of the diagnosis to the work-related injury. The relationship between the injury and the diagnosis should be use one of the following phrases:

1. Sole precipitant (The injury is judged to be the only reasonable factor related to the onset and progression of the disorder).

2. Major contributor (The injury is judged to be a major factor with regard to the onset and progression of the disorder. The injury predated the onset of the disorder).

3. Moderate contributor (The injury is judged to be a moderate factor with regard to the onset and progression of the disorder. The injury predated the onset of the disorder).

4. Minor contributor (The injury is judged to be a minor factor with regard to the onset and progression of the disorder. The injury predated the onset of the disorder).

5. Major aggravant (The injury is judged to be a major factor in the progression of an already existing disorder. The injury postdated the onset of the disorder).

6. Moderate aggravant (The injury is judged to be a moderate factor in the progression of an already existing disorder. The injury postdated the onset of the disorder).

7. Minor aggravant (The injury is judged to be a minor factor in the progression of an already existing disorder. The injury postdated the onset of the disorder).

8. Unrelated or coincidental (The injury is not associated with the onset or progression of the disorder).

A discussion should include all other factors that are associated with the cause, onset and progression of the disorder in any situation except for when the injury is the sole precipitant. These non work-related factors should be carefully assessed. These non work-related factors should be considered to account for some percentage of the total effect on disability (work efficiency) and the pursuit of everyday living of the disorder. A statement of the percentage of total impairment as due to non work-related factors should be made apportionment percentage).

F. Impairment Rating A statement that no impairment rating is offered should be made for an individual diagnosis if the diagnosis has not reached maximum medical improvement, or does not disable the claimant and there is no effect on the pursuit of everyday living.. In all other cases, an impairment rating to account for the combined effects on disability (work efficiency) and the effect on the pursuit of everyday living should be made. An unapportioned impairment rating of total impairment should follow the West Virginia Workers’ Compensation Guidelines for Psychiatric Impairment (see Exhibit B). The unapportioned total impairment rating should then be apportioned for non work-related factors by a simple calculation to determine the percentage due to non work-related factors and those due to the work-related injury. The percentage calculated due to a work-related injury shall represent the final psychiatric impairment rating for the specific diagnosis.

G. Total Psychiatric Impairment Rating A statement that combines the total final psychiatric impairment ratings for each diagnosis to conclude a single total psychiatric impairment rating should be made.

XIII Recommendations A. Recommendations should be made for further evaluation to complete the independent medical examination.

B. Recommendations should be made for further management of the patient’s psychiatric condition. These recommendations should be as specific as possible.

C. For diagnoses that have not reached maximum medical improvement, a recommendation to the Workers’ Compensation Division for an estimated time at which a follow-up independent medical examination should be made.

XIV. Signature and Title

Series 21 Managed Health Care Plans

W. Va. Code R. § 85-21-1 General

1.1. Scope. -- This exempt legislative rule establishes the requirements and procedures to be followed by the West Virginia Workers' Compensation Commission, parties to claims pending before the Commission, employers, private carriers, and managed health care plan administrators and others involved in the delivery or proposed delivery of managed care to injured workers pursuant to W. Va. Code §§23-4-3(b)(2) and 23-2C-17(d)(1) and (2).

1.2. Authority. -- W. Va. Code §23-4-3(b)(2). Pursuant to W. Va. Code Section §23-1-1a(j)(3), rules adopted by the Workers Compensation Board of Managers are not subject to legislative approval as would otherwise be required under W. Va. Code Section §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed. Upon termination of the Commission, regulatory enforcement of this exempt legislative rule shall transfer to the Insurance Commissioner. W. Va. Code §23-2C-22.

1.3. Filing Date. -- June 29, 2005.

1.4. Effective Date. -- August 1, 2005.

W. Va. Code R. § 85-21-2 Purpose of Rule; Cooperation

It is a goal of the workers' compensation program to assist workers to return to work as soon as practicable after a compensable injury and to otherwise provide for high quality, cost effective medical care to injured workers. It is the shared responsibility of the employer, the injured worker, the managed health care plan, private carriers, and the Commission, or upon termination of the Commission, the Insurance Commissioner, to cooperate to achieve this goal.

W. Va. Code R. § 85-21-3 Definitions

As used in this exempt 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. "Commission" means the West Virginia Workers' Compensation Commission as provided for by W. Va. Code §23-1-1.

3.3. "Injury" and derivative words have the meaning ascribed to the term "injury" by W. Va. Code §23-4-1.

3.4. "Injured worker" and “claimant” mean an employee entitled to workers' compensation benefits as the result of a work-related injury, as provided under W. Va. Code §23-4-1.

3.5. "Employer" has the meaning ascribed to that term by W. Va. Code §23-2-1, which includes, but is not limited to, any individual, sole proprietor, firm, partnership, limited partnership, limited liability company, joint venture, association, corporation, company, organization, receiver, estate, trust, guardian, executor, administrator, government entity or any other entity regularly employing another person or persons for the purpose of carrying on any form of industry, service or business in this state.

3.6. “Managed health care plan” means a plan that establishes, operates, or maintains a network of health care providers that have entered into agreements with the plan to provide health care services to injured workers to whom the plan has the ultimate obligation to arrange for the provision of or payment for services through organizational arrangements for ongoing quality assurance, utilization review programs, or dispute resolution.

3.7. “Provider” means any physician, hospital or other person or organization, which is licensed or otherwise authorized in this state to provide health care services or supplies.

3.8. “Utilization review” means the critical examination of health care services provided to patients especially for the purpose of controlling costs and monitoring the quality of care.

3.9. “Insurance Commissioner” means the insurance commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code.

3.10. “Insurer” shall mean 1) a self-insured employer; or 2) a private carrier.

3.11. “Private Carrier” means any insurer authorized by the insurance commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code, but shall not include self-insured employers.

W. Va. Code R. § 85-21-4 Minimum Plan Standards

4.1. Employers, managed health care plans acting on their behalf, private carriers, or third party administrators may submit to the Commission, or upon termination of the Commission, the insurance commissioner, a proposed managed health care plan and if approved, can require its injured workers to use health care providers authorized by the managed health care plan for care and treatment of the injured workers’ compensable injuries. The Commission, or upon termination of the Commission, the insurance commissioner, retains sole discretion in approving proposed managed health care plans. All managed health care plans submitted for approval shall include the following features:

a. Co-payments or deductibles shall not be required for medical services rendered in connection with a work-related injury or occupational disease;

b. The injured worker shall be allowed a reasonable choice of providers within the plan;

c. Adequate specialty and subspecialty providers, and general and specialty hospitals must be provided for to afford employees reasonable choice and convenient geographic accessibility to all categories of licensed care. Primary care available within 75 driving miles of the employer’s facility is presumed to be geographically reasonable unless the standard of care within the community extends this distance. The availability of secondary and tertiary care shall not be governed by the 75 mile standard;

d. The managed health care system shall provide an informal procedure for the expeditious resolution of disputes concerning rendition of medical services;

e. The employee shall be allowed to obtain a second opinion, at the employer's expense, from a qualified physician within the plan, if available, if a managed health care system physician recommends surgery;

f. The managed health care system shall establish procedures for utilization review of medical services to assure that a course of treatment is medically necessary; diagnostic procedures are not unnecessarily duplicated; the frequency, scope, and duration of treatment is appropriate; pharmaceuticals are not unnecessarily prescribed; and that ongoing and proposed treatment is not experimental, cost ineffective, or harmful to the employee;

g. Mechanisms for utilization review which shall prevent inappropriate, excessive, or medically unnecessary medical services and including:

1. Treatment standards upon which utilization review decisions shall be based (including low back symptoms and injuries to the upper extremities and knees) assuring quality care in accordance with prevailing standards in the medical community of which the plan provider is a member. The standards shall conform to any practice parameters or guidelines for clinical practice adopted by the Commission, or upon termination of the Commission, the Insurance Commissioner;

2. Mechanisms requiring periodic review to determine that continued treatment of an injured employee is reasonable, appropriate, and medically necessary;

3. Assurance that the managed health care system is conducting utilization review; and 4. Adequate procedures for credentialing providers and evaluating the quality and cost effectiveness of services delivered under the plan.

h. Statements for services shall be audited regularly to assure that charges are not duplicated and do not exceed those authorized by the particular plan;

i. Restrictions on provider selection imposed by a managed health care plan authorized by this chapter shall not apply to emergency medical care;

k. Provisions to allow for the Commission, or upon termination of the Commission, the insurance commissioner, to audit the managed health care plan’s operations;

l. Effective methods of informing employees, employers, and medical providers of the services provided by the plan and requirements imposed by the plan, including a twenty-four (24) hour toll free phone number by which information may be obtained concerning plan operations, after-office-hours care, and twenty-four (24) hour access to emergency care;

m. A system to provide authorization to medical providers and health facilities where preauthorization or continued stay review is required by the plan. The authorization shall be recorded in the treatment section of the appropriate billing forms;

n. Case management by either a certified case manager, certified rehabilitation counselor, certified insurance rehabilitation specialist, or a certified rehabilitation registered nurse to coordinate the delivery of health services and return to work policies; promote an appropriate, prompt return to work; and facilitate communication between the employee, employer, and health care providers. The plan shall describe the circumstances under which injured employees shall be subject to case management and the services to be provided;

o. The managed health care plan must be owned and operated by an organization or entity sufficiently unrelated and independent of the employer in terms of ownership and control so that it can demonstrate independence from said employer; and p. The managed health care plan shall have a medical director to fulfill the duties set forth in this exempt legislative rule and to perform other duties customarily associated with the medical director of a managed health care plan.

4.2. A managed health care plan may include physical and vocational rehabilitation providers as part of the managed health care plan’s network.

4.3. This rule shall not preclude or otherwise limit an injured workers’ right to seek care from a provider outside the approved plan or approved opt-out provider at his or her own expense.

W. Va. Code R. § 85-21-5 Application Process

5.1. The following process shall govern the application process for managed health care plans submitted to the Commission or upon termination of the Commission, the insurance commissioner, for approval pursuant to West Virginia Code Section 23-4-3(b)(2). All managed health care plans must be approved by the Commission or upon termination of the Commission, the insurance commissioner, before utilized. Employers may participate in one (1) or more approved managed health care plans. Applications for initial certification and renewal shall be submitted, in triplicate, in a form acceptable to the Commission or upon termination of the Commission, the insurance commissioner, and shall contain the following information:

a. Plan identification.

1. Plan name and address.

2. Date and state of incorporation.

3. Name, address, and phone number of each corporate officer and director, and of the person who will be the day-to-day plan administrator.

4. Name and address of each owner of more than five (5) percent of the stock or controlling interest in the entity.

5. Name, address, and phone number of the medical director, who shall be a medical doctor (M.D. or D.O. physician) and who shall oversee and monitor compliance with the quality care, utilization review and credentialing provisions of the managed care plan.

6. Name, address, and phone number of the case manager who shall be qualified as either a certified case manager, certified rehabilitation counselor, certified insurance rehabilitation specialist, or certified rehabilitation registered nurse who shall oversee and monitor case management provisions of the managed care plan.

7. Description of the system's organizational structure.

b. Plan qualifications.

1. Description and map of the plan’s service area.

2. Name, address, phone number, and specialty of all participating providers. The plan shall provide assurance that all licensing, registration, or certification requirements have been met and are current for the providers to practice in West Virginia (or border states wherein the provider practices) and that each participating provider shall maintain in full force and effect a professional malpractice policy with limits of no less than $1,000,000 for an occurrence of professional negligence, unless the Commission, or upon termination of the Commission, the insurance commissioner determines, in its sole discretion, that a different malpractice limit is more appropriate given the providers’ specialty or discipline.

3. A specimen of the agreement that each class of medical provider shall execute to participate in the plan.

4. Specimens of the materials which the plan shall provide to workers setting forth the grievance procedure and form, the requirements and restrictions of the plan, and the means of accessing services and treatment within and outside of the service area. The applicant shall detail the time and means by which the materials shall be delivered to employees and employers.

5. Specimens of materials directed at management employees informing supervisors of the necessity of channeling injured workers to the managed health care plan providers and giving immediate notice to the employer, insurance carrier, and plan of the occurrence of an injury.

6. A plan to transition current injured workers to providers within the approved plan; provided that said transfer shall not be mandated any sooner than sixty (60) days from the date approval is received from the commission and , upon termination of the commission, the insurance commissioner.

c. Financial Ability. Each managed health care plan shall demonstrate to the Commission or upon termination of the Commission, the insurance commissioner, that it has sufficient financial resources and professional expertise to perform all of the necessary functions of a managed health care plan. Each managed health care plan requesting certification shall demonstrate such resources and ability to the Commission or upon termination of the Commission, the insurance commissioner, by the following:

1. In the event the applicant has previously provided managed care or other similar medical and administrative services in West Virginia, the applicant shall provide a summary and description of the administrative and medical services provided, together with a list of representative entities for which managed care related administrative or medical services have been provided; and 2. In the event the applicant has not previously provided services related to the delivery of managed care in West Virginia, it shall be required that, prior to certification, that the applicant post either a performance bond, cash surety deposit, bank letter of credit, or other approved instrument in an amount of $500,000 with the Commission or upon termination of the Commission, the insurance commissioner, to demonstrate sufficient financial resources to provide all of the administrative and medical services required to be performed under a managed care plan. The bond or cash surety shall be released by the Commission or upon termination of the Commission, the insurance commissioner, sixty (60) days after the managed health care system demonstrates to the Commission or upon termination of the Commission, the insurance commissioner, that all of its arrangements for rendering workers' compensation managed care services in the state have been terminated.

2. If the applicant has an audited financial statement addressing any of its prior operations for the preceding year, a copy of the applicant's most recent audited financial statement shall be submitted to the Commission or upon termination of the Commission, the insurance commissioner.

W. Va. Code R. § 85-21-6 Approval by the Commission

6.1. The Commission or upon termination of the Commission, the insurance commissioner, shall notify the applicant in writing of the determination made upon the application for certification or modification thereof, within sixty (60) days of receipt of a complete application. A denial shall be final and unappealable.

6.2. A certificate shall be valid for a period of two (2) years and only for the service area and managed care plan or plans specified by the Commission or upon termination of the Commission, the insurance commissioner. Upon written request made at least sixty (60) days prior to expiration of the current certificate, the Commission may recertify a plan for additional successive two (2) year periods. Geographical areas may be added upon the filing of a supplemental application demonstrating the managed health care system's ability to serve the expanded area.

6.3. If an application does not meet the requirements for certification or expansion, the Commission or upon termination of the Commission, the insurance commissioner, shall notify the applicant in writing and specify those items deemed deficient. The applicant is granted thirty (30) days from the date of notice by the Commission or upon termination of the Commission, the insurance commissioner, to correct deficiencies through an amended application.

6.4. Certifications of a managed care plan are not transferable. A new application for certification must be filed when fifty (50) percent or more of the ownership or controlling interest of a system has been transferred.

W. Va. Code R. § 85-21-7 Plan Modifications

7.1. A managed health care plan, which either implements or experiences material variations as to any matter set forth in the original application or managed care plan, shall obtain approval for the modification by filing a request for modification with the Commission or upon termination of the Commission, the insurance commissioner.

a. Intended variations shall not be implemented until approved by the Commission or upon termination of the Commission, the insurance commissioner.

b. A modification outside the control of the system shall be filed with the Commission within fifteen (15) days of its occurrence.

7.2. Within fifteen (15) days of entering into an agreement with an employer or insurer to provide workers' compensation managed care services, the managed health care plan shall submit notification thereof to the Commission or upon termination of the Commission, the insurance commissioner. The notification shall identify the employer or employers with whom the managed health care plan has contracted and the certified managed care plan applicable to that employer. Notification shall be deemed approved unless disapproved by the Commission or upon termination of the Commission, the insurance commissioner, in writing within thirty (30) days of filing. The plan shall promptly furnish any information deemed necessary by the Commission or upon termination of the Commission, the insurance commissioner, to review the notice. When an employer or insurer terminates a contract with a managed health care plan, the managed health care plan shall file notification with the Commission or upon termination of the Commission, the insurance commissioner, within fifteen (15) days of the occurrence, indicating the employers for whom managed care services have been terminated and the effective date of the termination.

W. Va. Code R. § 85-21-8 Suspension or Revocation of Certification

8.1. The certification of a managed care plan by the Commission or upon termination of the Commission, the insurance commissioner, may be suspended or revoked if:

a. Service is not being provided according to the terms of the certified managed care plan, or in accordance with prevailing treatment standards, or in accordance with treatment standards or practice parameters adopted by the Commission, or upon termination of the Commission, the insurance commissioner;

b. The plan for providing services or the contract with the insurer or health care provider fails to meet the requirements of the West Virginia Code or applicable state rules and regulations;

c. Any material false or misleading information is intentionally submitted by the managed health care system or participating provider to the Commission or upon termination of the Commission, the insurance commissioner, the employer, or the insurer;

d. The managed health care system knowingly or negligently utilizes a health care provider whose license, registration, or certification has been suspended or revoked, or who is otherwise ineligible to provide treatment of the type rendered to an injured employee; or e. For any other good faith basis as determined in the sole discretion of the Commission or upon termination of the Commission, the insurance commissioner.

8.2. The Commission or upon termination of the Commission, the insurance commissioner, may investigate the operations of a certified managed health care plan at any time and the plan and its providers shall cooperate in any investigation by the Commission or upon termination of the Commission, the insurance commissioner. Should the Commission or upon termination of the Commission, the insurance commissioner, find that reasonable grounds for termination or suspension of a managed care plan certification exist, written notice setting forth those grounds shall be mailed to the system by certified mail, return receipt requested. The system is granted fifteen (15) days from the date of the verified receipt or refusal of the notice in which to file written response. Thereafter, the Commission or upon termination of the Commission, the insurance commissioner, shall render a written decision by which the certification of the plan may be terminated, suspended, or conditionally continued to permit the correction of deficiencies directed. The Commission’s or upon termination of the Commission, the insurance commissioner’s, decision is final and unappealable.

W. Va. Code R. § 85-21-9 Other Administrative Provisions

9.1. An employee who reports an injury alleged to be work-related or files an application for adjustment of a claim shall execute a waiver and consent of any privilege with respect to any condition or complaint reasonably related to the condition for which the employee claims compensation. Notwithstanding any other provision of the West Virginia Code, any physician, psychiatrist, chiropractor, podiatrist, hospital, or health care provider shall, within a reasonable time after written request by the employee, employer, or Commission or upon termination of the Commission, the insurance commissioner, provide the requesting party with any information or written material reasonably related to any injury or disease for which the employee claims compensation.

9.2. When a provider of medical services or treatment makes referrals for medical services or treatment to a provider or entity in which the provider making the referral has an investment interest, the referring provider shall disclose that investment interest to the employee, the Commission or upon termination of the Commission, the insurance commissioner, and the employer or the third party administrator responsible for paying for the medical services or treatment, within thirty (30) days from the date the referral was made.

9.4. Employers may contract with multiple managed health care plans in order to maximize access for their employees.

9.5. Temporary total disability must be certified by a provider within the approved managed health care plan, unless the opt-out provisions of this rule have been satisfied.

W. Va. Code R. § 85-21-10 Minimum Grievance Standards

10.1. Each workers' compensation managed care plan shall contain an expeditious, informal grievance procedure to resolve disputes by employees and providers relative to the rendition of medical services. A detailed description of the employee grievance procedure shall be included in informational materials provided to employees and a detailed description of the provider grievance procedure shall be included in all provider contracts.

10.2. The grievance procedure shall meet the following minimum requirements:

a. Notice. A grievance is made when a written complaint or written request is delivered by the employee or provider to the managed health care system setting forth the nature of the complaint and remedial action requested.

b. Time frame to file grievance. The employee or provider shall file a grievance within thirty (30) days of the occurrence of the event giving rise to the dispute.

c. Resolution. The managed health care system shall render a written decision upon a grievance within thirty (30) days of receipt by the managed health care system of the grievance.

d. Arbitration. Managed care plans may provide for alternate means of dispute resolution including arbitration and mediation. In that event final resolution of a grievance shall not be subject to the time constraints set forth in paragraph c of this subsection. In all cases, resolution mechanisms shall be expeditious and where treatment matters are at issue reflect the need for prompt resolution.

10.3. Record of grievance proceedings. The managed health care plan shall maintain records for two (2) years of each formal grievance to include the following:

a. A description of the grievance; the employee's name and address; names and addresses of the health care providers relevant to the grievance; and the managed health care system's and employer's name and address; and b. A description of the managed health care system's findings, conclusions, and disposition of the grievance.

10.4. Appeal. The managed health care plan shall notify the applicable self-insured employer, private carrier or the Commission of its final decision so that either the self-insured employer, private carrier or the Commission can issue a protestable order setting forth the decision. The Commission’s or upon termination of the Commission, the insurance commissioner’s, role is administrative only and it will not rule on the merits of the dispute. The time period set forth in the West Virginia Code to protest to the Office of Judges shall begin to run upon issuance of the protestable order and shall be tolled until that time.

W. Va. Code R. § 85-21-11 Reporting Requirements

11.1. Each certified managed health care plan shall submit a report to the Commission or upon termination of the Commission, the insurance commissioner, semi-annually containing the following information:

a. Number of employees treated by the managed care plan;

b. Number of work-related injuries or diseases by ICD-9 code treated under the managed care plan in the preceding year;

c. Breakdown by ICD-9 codes of injuries and diseases treated;

d. Total medical costs;

e. Average medical cost per injured employee by type of injury;

f. Average medical cost per diseased employee by type of disease;

g. Breakdown of medical cost elements as to type of physician utilized, hospital costs, drug costs, and other costs;

h. Number of grievances filed, and summary of action taken; and i. Number of days by type of injury and disease for which an employee has been released from work.

W. Va. Code R. § 85-21-12 Provider Verification

12.1. Each employer which provides medical services through a managed care plan will provide to the injured employee a written certification of workers' compensation managed care coverage as soon as practicable following notice of a compensable injury or disease requiring medical services. The verification shall contain the following information:

a. Employer name, address, and phone number;

b. Name and telephone number of the managed health care system to be contacted; and c. Employee name and Social Security number.

12.2. Possession of such verification is not to be construed as authorization for medical service or payment.

W. Va. Code R. § 85-21-13 Injured Worker Opt-Out Standards

13.1. Injured workers may access providers who are not participating plan providers:

a. For emergency care when access to a health care provider within the managed health care plan is unobtainable for the acute phase of care;

b. When authorized treatment is unavailable through the managed care plan; or c. To obtain a second opinion when a managed health care plan physician recommends surgery and another qualified physician within the plan is not available for consultation.

13.2. Injured workers may access providers who are not participating plan providers for treatment purposes only if the injured worker has established by competent evidence all of the following:

a. The injured worker has been treated by providers solely within the employer's managed care plan for a period of at least one (1) year;

b. That for reasons related to the treatment alone, the injured worker has not made progress toward recovery that is reasonably consistent with the Commission's or upon termination of the Commission, the insurance commissioner, treatment guidelines;

c. That the injured worker establishes to a reasonable certainty that proposed treatment outside the employer's managed care plan would more likely provide the injured worker with a better clinical outcome than the current treatment or rehabilitation plan; and d. A condition of the right to opt out under this provision shall be that the services secured outside the plan are for treatment purposes only and the provider shall not be permitted to rate the injured worker for permanent partial or permanent total disability. Any provider providing services pursuant to this provision shall be barred from providing such a rating.

W. Va. Code R. § 85-21-14 Severability

If any provision of these rules or the application thereof to any entity or circumstance is held invalid, the invalidity will not effect the provisions or the applications of these rules which can be given affect without the invalid provisions or application and to this end the provisions of these rules are declared to be severable.

85CSR21

85CSR21

Series 26 Health Care Advisory Panel

W. Va. Code R. § 85-26-1 General

1.1. Scope. -- This rule applies to the Health Care Advisory Panel, created pursuant to W. Va. Code §§23-4-3b. The purpose of this rule is to comply with the requirements of both W. Va. Code §§6-9A-3 and 29A-3-3. This rule sets forth the procedures by which the Panel will conduct its business. This rule defines the procedure for appointment of members and alternate members of the Panel. This rule further defines the authority of the Panel in carrying out its duties under the provisions of chapter twenty-three of the West Virginia Code [§§23-1-1 et seq.].

1.2. Authority. -- W. Va. Code §§6-9A-3, 23-1-1a(j)(3), 23-4-1 et seq., and 29A-3-3.

1.3. Filing Date. -- May 27, 2005.

1.4. Effective Date. -- July 1, 2005.

W. Va. Code R. § 85-26-2 Definitions

As used in this rule, the following terms, words and phrases have the meanings stated below unless in any instance where such term, word or phrase is employed, the context clearly indicates that another meaning is intended.

2.1. "Chair" means the chairperson of the Health Care Advisory Panel.

2.2. "Commission" means the West Virginia Workers’ Compensation Commission as provided for by W. Va. Code §23-1-1, et seq.

2.3. "Executive Director" means the Executive Director of the West Virginia Workers' Compensation Commission as provided pursuant to the provisions of W. Va. Code §23-1-1b.

2.4. "Panel" or "HCAP" means the Health Care Advisory Panel, established pursuant to W. Va. Code §23-4-3b.

2.5. "Sub-panel" means groups established under the authority of the Health Care Advisory Panel, which include members of the Panel and may include other members of the health care profession, which report back to the Panel.

2.6. "This rule" means the rule designated as W. Va. 85CSR26 entitled, “Health Care Advisory Panel.”

W. Va. Code R. § 85-26-3 Appointments

3.1. The Executive Director shall appoint not less than five members to the Health Care Advisory Panel. Members of the Health Care Advisory Panel shall consist of representatives from among the various branches and specialties among health care providers in this state. Each member of the Panel serves at the will and pleasure of the executive director.

3.2. The Executive Director, from time to time, shall fix, by contract or otherwise, the compensation to be paid to each member of the Panel. The members are entitled to reasonable and necessary traveling and other expenses incurred while actually engaged in the performance of their duties.

W. Va. Code R. § 85-26-4 Chair; Vice Chair, Secretary. 4.1 The Executive Director shall annually appoint one member of the Panel to serve as its chair; the chair shall preside over the meetings of the Panel, communicate regularly with the Commission and assure that all administrative functions of the Panel are performed; the chair is also authorized to select persons who are not members of the Panel to serve on HCAP subpanels

4.2. The members of the Panel may elect a vice chair to serve the Panel from among its regular members, to preside over meetings in the absence of the chair and to assist the chair in administrative functions. The term of the vice-chairperson shall be for one calendar year; from July 1 to June 30; but, the incumbent shall continue to serve until replaced. A vacancy may be filled by electing a new vice-chairperson for the remainder of a term. A member may be reelected as vice-chairperson.

4.3. The Executive Director shall assign an employee of the Commission to serve as secretary to the Panel; the secretary shall assure that the minutes of Panel meetings are recorded and preserved, and that meetings of the Panel comply with all requirements for public notice.

W. Va. Code R. § 85-26-5 Meetings; Conduct of Business

5.1. Public meetings of the Health Care Advisory Panel may be called by the chairperson. The chairperson shall call a meeting upon the written request of a majority of the voting members of the Panel.

5.2. The chairperson shall notify Panel members in writing at least seven (7) days in advance of a meeting. The notice shall set forth the time and place of such meeting and the matters to be considered, except that such notice is not required if the time, the place, and the matters for consideration have been fixed in a meeting where all the members are present.

5.3. The chairperson shall notify the public and the news media by filing with the office of the Secretary of State a public notice of the meeting. The notice shall be filed in a manner so as to allow each notice to appear in the state register at least five days prior to the date of the meeting. The public notice shall contain the time, the place, and purpose of the meeting.

5.4. The provisions of this section shall not apply in the event of an emergency requiring immediate official action by the Panel. In the event of an emergency requiring immediate official action, the Panel may file an emergency meeting notice at any time prior to the meeting. The emergency meeting notice shall state the time, place, and purpose of the meeting and the facts and circumstances of the emergency.

5.5. Meetings may be continued to a set time and place by a majority vote of the Panel members present and voting without further notice to the members and without further publication unless such continued meeting is scheduled for more than fourteen (14) days from the date of the voting.

5.6. All members present at a meeting shall have the same right to participate in discussion of matters before the Panel.

5.7. The Panel shall consider any matter brought before it by the chairperson or any appointed member and may consider, at its discretion, any matter referred to it by a person not a member of the Panel.

5.8. A meeting of the Panel may be conducted by telephonic means. In the event that a telephonic conference call is to be utilized, the notice shall so state and shall additionally state the time and date of the meeting as provided for in subsections 5.3 and 5.4.

5.9. A quorum shall exist for a meeting if a simple majority of appointed Panel members are present.

5.10. The Health Care Advisory Panel is authorized to meet in executive session as permitted by statute; the minutes of the public meeting shall reflect the reason for the move to executive session.

5.11. Members of the Health Care Advisory Panel shall keep confidential any claimant specific information which is made available to them.

W. Va. Code R. § 85-26-6 Sub-panels

6.1. The Health Care Advisory Panel may establish sub-panels to assist in conducting HCAP business.

6.2. The sub-panel chair must be a regular member of the Health Care Advisory Panel.

6.3. The duties of the sub-panel shall be defined by the Panel chair, with consensus of HCAP.

6.4. The HCAP chair shall appoint members of sub-panels:

a. HCAP members may serve on sub-panels; and b. At the discretion of the chair of the Health Care Advisory Panel and the agreement of the Executive Director, persons who are qualified by education and experience, who are not regular members of HCAP, may be appointed to serve on a sub-panel.

1. The Executive Director shall fix, by contract or otherwise, the compensation to be paid to each member of the Sub-panel, who is not a regular member of HCAP. The Sub-panel members are entitled to reasonable and necessary traveling and other expenses incurred while actually engaged in the performance of their duties.

6.5. Sub-panels shall meet on an ad hoc or scheduled basis, and may be discontinued upon determination by the HCAP that the functions for which the sub-panel was established no longer require the sub-panel.

6.6. Sub-panels shall not have any independent decision-making authority, but shall serve in an advisory capacity to the Health Care Advisory Panel.

W. Va. Code R. § 85-26-7 Minutes

7.1. The Panel shall provide for the preparation of written minutes of all its meetings. All such minutes shall be available to the public within a reasonable time after the meeting and shall include the following information:

a. The date, time and place of the meeting;

b. The name of each Panel member present or absent;

c. All motions, proposals, resolutions, orders, ordinances and measures proposed, the name of the person proposing the same and their disposition; and d. The results of all votes and, upon request of a member, the vote of each member, by name.

7.2. Minutes of executive sessions may be limited to material the disclosure of which is not inconsistent with the provisions of W. Va. Code §6-9A-4 listed above.

W. Va. Code R. § 85-26-8 Majority Vote Required; Vote by Proxy Prohibited

The vote of a majority of all voting members present at any meeting of the panel shall be necessary to take any action.

W. Va. Code R. § 85-26-9 Records of the Panel - Public

Records of the Panel are public records that may be inspected in accordance with W. Va. Code §29B-1-3 and copied in accordance with the Commission's established fees for producing requested records.

W. Va. Code R. § 85-26-10 Resignation

Resignation from HCAP by any member shall be in writing to the Executive Director, with a copy to the chair, vice chair and secretary of HCAP.

W. Va. Code R. § 85-26-11 Preferred Drug List

11.1. Purpose. In accordance with the provisions of the Workers’ Compensation Act [23-4-3(a)(3)] that require pharmacists, filling a prescription for medication for a workers’ compensation claimant, to dispense a generic brand of the prescribed medication if the generic brand exists and in accordance with HCAP’s responsibility to establish guidelines for reasonably required health care treatment for occupational injuries and diseases, HCAP shall establish a Preferred Drug List (PDL) for the purposes of:

a. Improving the quality of care of claimants by utilizing a PDL of generics and brand medications in the absence of generics;

b. Affecting cost savings in the provision of health care services by determining what is reasonably required; and c. Optimizing pharmaceutical care and cost effectiveness.

11.2. Determinations. Considering the purposes the PDL, HCAP shall determine:

a. Therapeutic classifications;

b. Generic medications associated with each therapeutic class; and c. Certain brand name medications associated with each therapeutic class for which a generic medication is not available.

11.3. Medications prescribed that are not listed on the PDL are subject to the approval of the Commission. In determining whether to approve or not approve the prescription, the Commission shall consider whether any generic or brand name medication for the same therapeutic class is listed on the PDL. If a generic or brand name medication is listed for that therapeutic class, the Commission shall not authorize the prescription.

a. Medications prescribed for off-label use shall not be approved.

b. “Off-label use” means that the medication is prescribed for a condition, which is inconsistent with the manufacturer’s label or instructions.

11.4. Procedure. Determinations made by HCAP shall be made in the following manner.

a. HCAP shall make any determination or determinations at a public meeting or meetings held in accordance with the provisions of this rule.

b. The determinations shall be filed with the office of the secretary of state for publication in the state register pursuant to the provisions of W. Va. Code §29A-2-1 et seq.

11.5. Review. HCAP shall review the listings and classes of the PDL at least every six months as calculated from the effective date of this rule. The PDL may be reviewed and updated more often in the discretion of HCAP in accordance with the purposes and procedures contained within this section.

11.6. The current PDL, as adopted by HCAP, remains in force and effect in all existing and future claims until such time as HCAP adopts or revises the PDL.

W. Va. Code R. § 85-26-12 Transition

12.1. The health care advisory panel shall remain in existence until the termination of the commission. Upon termination of the commission, the insurance commissioner shall assume the following functions of the health care advisory panel:

a. Establish guidelines for the health care which is reasonably required for the treatment of the various types of injuries and occupational diseases;

b. Establish protocols and procedures for the performance of examinations or evaluations performed by physicians or medical examiners; and c. Establish guidelines regarding the anticipated period of disability for the various types of industrial injuries.

12.2. The insurance commissioner shall establish such guidelines and protocols for the medical management of claims and awards of disability which includes, but is not limited to, reasonable and standardized guidelines and parameters for appropriate treatment, expected period of time to reach maximum medical improvement and range of permanent partial disability awards for common injuries and diseases or incorporating by reference a plan or program for the medical and disability management of claims, as provided in W. Va. Code §23-4-3b(b), through the rule making process.

W. Va. Code R. § 85-26-13 Severability

If any provision of these rules or the application thereof to any entity or circumstance shall be held invalid, such invalidity shall not effect the provisions or the applications of these rules which can be given affect without the invalid provisions or application and to this end the provisions of these rules are declared to be severable.

85CSR26

85CSR26

Series 27 Qualified Rehabilitation Provider

W. Va. Code R. § 85-27-1 General

1.1. Scope. -- This rule establishes the minimum credentials to be met for an individual to be recognized as qualified to provide vocational rehabilitation services for the Workers’ Compensation Commission, the Insurance Commissioner, private carriers and self-insured employers, whichever is applicable, and to be reimbursed for such services.

1.2. Authority. -- W. Va. Code §§23-1-1 and 23-1-1a(j)(3). Pursuant to W. Va. Code §23-1-1a(j)(3), rules adopted by the board of managers and the commission are not subject to legislative approval as would otherwise be required under W. Va. Code, §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing Date. -- August 31, 2005.

1.4. Effective Date. -- October 1, 2005.

W. Va. Code R. § 85-27-2 Purpose of Rule

2.1. The purpose of this rule is to implement the provisions of W. Va. Code, §§23-4-3, 23-4-3b, and 23-4-9 which relate to the development of standards for vocational rehabilitation services. W. Va. Code §23-4-9(a) provides that “it is a goal of the workers’ compensation program to assist workers to return to suitable gainful employment after an injury . . . it is the shared responsibility of the employer, the employee, the physician and the commission to cooperate in the development of a rehabilitation process designed to promote reemployment for the injured employee.” This rule is intended to ensure vocational rehabilitation services provided to injured workers are provided in a professional manner by individuals qualified by education and experience to provide such services so the highest quality of rehabilitation services may be afforded to injured workers. This rule is applicable to any provider of vocational rehabilitation services that extends such services to injured workers under the West Virginia system of workers’ compensation insurance.

2.2. Upon termination of the Commission, no registration is required of qualified rehabilitation professionals. Qualified rehabilitation professionals are required to verify and provide proof of their certification or qualifications to the Insurance Commissioner, self-insured employer or private carrier, or to their third party administrator or managed care provider, whomever services are provided under this rule. In turn the Insurance Commissioner, self-insured employer or private carrier, or their third party administrator or managed care provider, is required to maintain this proof of certification or proof of qualifications of the qualified rehabilitation professional.

a. The Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, must use only qualified rehabilitation service professionals in making rehabilitation referrals.

W. Va. Code R. § 85-27-3 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. "Commission" means the West Virginia Workers' Compensation Commission as provided for by W. Va. Code §23-1-1.

3.2. “Insurance Commissioner” means the insurance commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code, or any third party administrator of the Insurance Commissioner.

3.3. “Code of Professional Ethics” refers to the code or codes to which a qualified rehabilitation professional subscribes and must include at least one of the following:

a. For certified rehabilitation counselors, the “Code of Professional Ethics for Rehabilitation Counselors” administered by the Commission on Rehabilitation Counselor Certification;

b. For certified disability management specialists, the “Code of Professional Conduct” administered by the Certification of Disability Management Specialists Commission;

c. For certified case managers, the “Code of Professional Conduct for Case Managers” administered by the Commission for Case Manager Certification;

d. For certified vocational evaluators, the “Code of Professional Ethics” administered by the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists;

e. For certified rehabilitation registered nurses, the “Code of Ethics for Nurses with Interpretive Statements” administered by the American Nurses Association and endorsed by the Association of Rehabilitation Nurses;

f. For West Virginia licensed professional counselors, the “Code of Ethics and Standards of Practice” promulgated by the American Counseling Association and administered by the West Virginia Examiners in Counseling;

g. For members of the International Association of Rehabilitation Professionals, the “Code of Ethics, Standards of Practice and Competencies” administered by the International Association of Rehabilitation Professionals”; or h. For qualified rehabilitation professionals, a code of ethics or standards of practice published by a relevant professional organization to which the qualified rehabilitation professional is a member.

3.4. "Vocational rehabilitation services" means professional counseling, consulting or rehabilitation case management services reasonably necessary to enable an injured worker to return to suitable gainful employment as soon as practical. This may include, but is not limited to, coordination of medical services, vocational assessment, vocational evaluation, vocational counseling, vocational rehabilitation plan development, vocational rehabilitation plan monitoring, job development, and job placement. Furthermore, “vocational rehabilitation services” means services covered by W. Va. Code § 23-4-9, which provide new skills or modified or alternative work to enable an injured worker to return to suitable gainful employment as soon as practical. Services may include, but are not limited to, adult basic education, vocational-technical training, college training, on-the-job training, travel expenses related to training, job modifications and placement tools.

3.5. “Qualified Rehabilitation Professional” means a person who has the education, experience and skills necessary to provide vocational rehabilitation services as defined in 85 C.S.R. 15 and pursuant to the rehabilitation priorities set forth in 85 C.S.R. 15, to make recommendations consistent with medical documentation, concerning an injured worker's ability to accept and perform suitable gainful employment, and to design, implement and supervise programs to enhance an injured worker's capacity to accept and perform suitable gainful employment. A qualified rehabilitation professional need not personally have the ability to administer and interpret all medical, psychological or vocational testing, but must be able to evaluate the test results provided by other professionals. A qualified rehabilitation professional is required to consider all appropriate rehabilitation priorities in each case.

3.6. “Supervised experience” means work in the field of vocational rehabilitation services in which the individual receives at least one (1) hour of formal instruction, case review, and case direction with a supervising professional for every twenty (20) hours worked. The Commission, Insurance Commissioner, private carrier or self-insured employer, whomever services are provided, may request documentation of such supervision. The supervised experience required by this rule must conform to the criteria for acceptable employment experience set forth in this rule.

3.7. “Certified rehabilitation counselor” means that earned designation as awarded by the Commissioner on Rehabilitation Counselor Certification.

3.8. “Certified disability management specialist” means that earned designation as awarded by the Certification of Disability Management Specialists Commission.

3.9. “Certified case manager” means that earned designation as awarded by the Commission for Case Manager Certification.

3.10. “Certified rehabilitation registered nurse” means that earned designation as awarded by the Association of Rehabilitation Nurses.

3.11. “Licensed professional counselor” means that earned designation as awarded by the West Virginia Board of Examiners in Counseling.

3.12. “Certified vocational evaluation specialist” means that earned designation as awarded by the Commission on Certification of Work Adjustment and Vocational Evaluations Specialists.

3.13. “Catastrophic injury” means an injury with one of the following diagnoses: quadriplegia, paraplegia, hemiplegia, traumatic brain injury (excluding mild brain injury or mild traumatic brain injury), major extremity amputation, or burns requiring admission to a specialized burn center.

3.14. “Private Carrier” means any insurer, including the successor to the Commission, authorized by the insurance commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code, but shall not include self-insured employers.

3.15. “Self-insurer” and “self-insured employer” mean employers who are eligible and have been granted self-insured status under the provisions of W. Va. Code §23-2-9.

3.16. “Board” means the workers’’ compensation board of managers created pursuant to the provisions of W. Va. Code §23-1-1a.

W. Va. Code R. § 85-27-4 Minimum Education and Experience Requirements

The following are considered the minimum education and experience requirements to provide vocational rehabilitation services under the West Virginia workers’ compensation insurance system:

4.1. A doctorate or masters degree from an accredited college or university in rehabilitation counseling, counseling, psychology, physical and/or occupational therapy, social work, nursing, or in a field that promotes the physical, psychosocial or vocational well-being of persons being served as well as at least twelve (12) months of full-time or equivalent part-time employment providing vocational rehabilitation services, as defined in this rule, to individuals receiving benefits or services from a disability compensation system or a public rehabilitation system of which six (6) months must have been under the supervision of a qualified rehabilitation professional; or

4.2. Current licensed professional counselor or certified vocational evaluation specialist certification as well as at least twelve (12) months of full-time or equivalent part-time employment providing vocational rehabilitation services, as defined in this rule, to individuals receiving benefits or services from a disability compensation system or a public rehabilitation system, of which six (6) months must have been under the supervision of a qualified rehabilitation professional; or

4.3. A baccalaureate degree from an accredited college or university in rehabilitation counseling, counseling, psychology, occupational therapy, social work, nursing, or in a field that promotes the physical, psychosocial or vocational well-being of persons being served as well as at least thirty-six (36) months of full-time or equivalent part-time employment providing vocational rehabilitation services, as defined this rule, to individuals receiving benefits or services from a disability compensation system or a public rehabilitation system, of which twelve (12) months must have been under the supervision of a qualified rehabilitation professional; or

4.4. A baccalaureate degree from an accredited college or university in any client serving field with transcripts documenting successful completion of at least five (5) of the following courses: medical aspects of disability, psychosocial aspects of disability, vocational-occupational information, job placement, theories of counseling, delivery of rehabilitation services, personal and vocational adjustment, vocational and career development, assessment and standardized testing, human resource management, health care administration or case management. In addition, the applicant must have at least forty-eight (48) months of full-time or equivalent part-time employment providing vocational rehabilitation services, as defined in this rule, to individuals receiving benefits or services from a disability compensation system or a public rehabilitation system, of which twenty-four (24) months must have been under the supervision of a qualified rehabilitation professional; or

4.5. Certified case managers, certified rehabilitation counselors, certified disability management specialists, or certified rehabilitation registered nurses. These limited types of qualified rehabilitation professionals are required to verify and provide proof of their certification to the Insurance Commissioner, self-insured employer or private carrier, or to their third party administrator or managed care provider, whomever services are provided under this rule. In turn the Insurance Commissioner, self-insured employer or private carrier, or their third party administrator or managed care provider, is required to maintain this proof of certification of the qualified rehabilitation professional.

W. Va. Code R. § 85-27-5 Acceptable Employment Experience

5.1. Full-time employment is considered as 35 hours per week.

5.2. Part-time experience is determined by calculating the total number of hours of acceptable experience divided by 35 hours, to result in the number of weeks of credit for acceptable experience.

5.3. Employment verification must provide evidence that 100% of the time counted as acceptable employment experience was spent providing vocational rehabilitation services to persons with impairments and disabilities. At least 50% of the activities must be directly related to serving persons with disabilities. Time spent in travel and waiting are not considered vocational rehabilitation services.

5.4. Employment experience must reflect activity in at least four (4) of the areas described in 5.4.a through 5.4.l to be considered acceptable.

5.4.a. Vocational rehabilitation consulting, career counseling or mental health counseling;

5.4.b. Developing and monitoring vocational rehabilitation services/care;

5.4.c. Job placement and/or job development;

5.4.d. Job analyses;

5.4.e. Individual appraisal;

5.4.f. Supervision of counselors or qualified rehabilitation professionals;

5.4.g. Vocational training;

5.4.h. Consultation in disability management;

5.4.i. Forensic rehabilitation services;

5.4.j. Return-to-work plan development and implementation;

5.4.k. Vocational evaluation; and

5.4.l. Medical rehabilitation case coordination.

W. Va. Code R. § 85-27-6 Continuing Education

6.1. Every two (2) years, commencing from the effective date of this rule, each qualified rehabilitation professional is required to maintain and present documentation to the Insurance Commissioner, self-insured employer or private carrier, or to their third party administrator or managed care provider, whomever services are provided under this rule, of completion of forty (40) contact hours of continuing education. Provided, at least three (3) hours of continuing education credits in ethics must be completed every two (2) years.

a. Certified case managers, certified rehabilitation counselors, certified disability management specialists, and certified rehabilitation registered nurses are exempt from the provisions of this section, but are required to verify and provide proof of their certification to the Insurance Commissioner, self-insured employer or private carrier, or to their third party administrator or managed care provider, whomever services are provided under this rule.

6.2. Qualified rehabilitation professionals are required as outlined in section 6.1 of this rule to maintain documentation of continuing education at their place to employment, to be reviewed by the Commission or Insurance Commissioner, whichever is applicable, when determined necessary by the applicable, Commission or Insurance commissioner personnel.

6.3. Programs of continuing education are formally organized educational programs offered in the form of a class, course, workshop, seminar, distance learning, staff development or training activity. Programs should enhance professional skills, values, knowledge, and/or ethical considerations in the qualified rehabilitation professional’s practice. The following is a representative list of applicable subjects:

a. Professional ethics;

b. Rehabilitation counseling or counseling;

c. Career Development or Vocational Counseling;

d. Medical, vocational and psychosocial aspects of disability;

e. Disability case management;

f. Managed care and disability management concepts;

g. Workers’ compensation and/or disability compensation systems;

h. Community agencies and resources;

i. Plan development in rehabilitation;

j. Job development and placement;

k. Foundations of rehabilitation;

l. Research and statistics;

m. Organizational psychology; social psychology; educational psychology;

n. Employer consultation services;

o. Family, gender and multicultural issues;

p. Tests and measures or vocational assessment; individual intelligence testing;

q. Problems in substance abuse;

r. Theories/techniques of work adjustment;

s. Environmental and attitudinal barriers for individuals with disabilities; and t. Theories of personality; individual differences; personality measures.

6.4. Continuing education programs approved by the Commission on Rehabilitation Counselor Certification, the Certification of Disability Management Specialists Commission, the Commission for Case Manager Certification, the Commission on Certification of Work Adjustment and Vocational Evaluation Specialists, the American Board of Vocational Experts, the National Board of Certified Counselors, or the West Virginia Board of Examiners in Counseling will be accepted. Fifteen (15) contact hours for each academic graduate semester hour or ten (10) contact hours for each academic graduate quarter hour will be granted for classes in rehabilitation counseling, counseling, psychology, occupational therapy or nursing successfully completed at accredited educational institutions.

6.5. A qualified rehabilitation professional whose eligibility was established based on certification as a certified rehabilitation counselor, certified disability management specialist, certified vocational evaluation specialist, certified rehabilitation registered nurse or certified case manager must maintain that certification to continue to be a qualified rehabilitation professional. Documentation of current certification must be maintained at their place of employment to be reviewed by the Commission, Insurance commissioner, private carrier or self-insured employer, or to their third party administrator or managed care provider, whomever services are provided under this rule, when determined necessary by the applicable Commission, Insurance Commissioner, private carrier or self-insurance, or their third party administrator or managed care provider, personnel.

W. Va. Code R. § 85-27-7 Other Requirements

7.1. An injured worker petitioning for permanent total disability benefits referred for a rehabilitation evaluation must be evaluated by a qualified rehabilitation professional with either a masters or doctorate degree in rehabilitation counseling, counseling and guidance, or psychology, or by a qualified rehabilitation professional with either the certified rehabilitation counselor, licensed professional counselor, vocational evaluation specialist, or certified disability management specialist certification or by a qualified rehabilitation professional who is certified by the American Board of Vocational Experts. Provided, an injured worker determined to have suffered a catastrophic injury must be assigned to a nurse qualified rehabilitation professional with at least one of the following certifications: (1) certified rehabilitation registered nurse; (2) certified case manager; or (3) certified disability management specialist.

W. Va. Code R. § 85-27-8 Severability

If any provision of this rule or the application thereof to any entity or circumstances shall be held invalid, such invalidity shall not affect the provisions or the applications of this rule which can be given affect without the invalid provisions or application and to this end the provisions of this rule are declared to be severable.

85CSR27

85CSR27

Series 28 Rules For Health Care Vendor Hearings

W. Va. Code R. § 85-28-1 General

1.1. Scope. -- This rule sets forth the procedures for administrative hearings for disputed issues between the Workers’ Compensation Commission and health care providers.

1.2. Authority. -- W. Va. Code §§23-4-3; 23-4-3c. Pursuant to W. Va. Code, 23-1-1a(j)(3), rules adopted by the Workers’ Compensation Board of Managers are not subject to legislative approval as would otherwise be required under W. Va. Code, §29A-3-1 et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Filing date. -- May 27, 2005.

1.4. Effective Date. -- July 1, 2005.

W. Va. Code R. § 85-28-2 Definitions

As used in this rule, the following terms, words, and phrases have the meaning stated unless in any instance where such term, word, or phrase is employed and the context expressly indicates that another meaning is intended.

2.1. “Agent” means a private company retained by the Commission to audit, identify and collect medical vendor overpayments.

2.2. “Act” means the workers’ compensation laws of the State of West Virginia that are codified at chapter twenty-three of the Code of West Virginia.

2.3. “Hearing Officer” refers to an objective trier of fact who will be conducting a de novo administrative hearing in health care vendor issues arising between the Workers’ Compensation Commission and a registered health care vendor.

2.4. “Code of West Virginia” and “West Virginia Code” means the West Virginia Code of 1931 as amended.

2.5. "Executive Director" means the Executive Director of the West Virginia Workers’ Compensation Commission as provided pursuant to the provisions of W. Va. Code §23-1-1b.

2.6. "Commission" means the West Virginia Workers’ Compensation Commission as provided for by W. Va. Code §23-1-1, et seq.

2.7. “Health Care Vendor” or “Health Care Provider” refers to health care providers, including providers of rehabilitation services within the meaning of W. Va. Code §23-4-9, both in- and out-of-state who have signed provider agreements with West Virginia Workers’ Compensation Commission to provide health care to injured workers.

2.8. “Office of Judges” refers to the Office of Judges, as set forth in W. Va. Code §23-5-8.

2.9. “This rule” means the present exempt legislative rule that is designated in the caption here as title 85, series 28.

W. Va. Code R. § 85-28-3 Overpayments: Notification and Reconsideration

3.1. Notification of decision. The Commission shall notify each health care vendor of any alleged overpayment by United States mail, first class, postage pre-paid.

3.1.a. In overpayment matters the notification shall detail and provide an itemized statement of the alleged overpayment and the audit reason.

3.1.b. The notification shall include language to inform the health care provider that it is afforded the right to file a request for reconsideration of the decision and provide an address where the request for reconsideration shall be filed.

3.1.c. The notification may be sent by the Commission's agent. The notification may require that the request for reconsideration be filed with the Commission's agent or the Commission as specified in the notification.

3.2. Undisputed amounts. If the findings of overpayment contained within the notification are not disputed by the health care vendor, then the health care vendor is required to remit payment in full within sixty (60) calendar days of the notification date.

3.2.a. Upon receipt of a request from the health care vendor and a showing of undue hardship, the Commission may enter into a repayment agreement with the health care provider. The repayment agreement shall not extend for a period in excess of twelve (12) months and shall provide for the payment of principal and interest. Interest shall be calculated in the same manner as provided in the provisions of W. Va. Code §23-2-13.

3.3. Request for reconsideration. Each health care provider who desires to dispute an overpayment decision is required to file a complete and timely request for reconsideration as a condition precedent to filing a petition for hearing.

3.4. Time limits. A request for reconsideration shall be filed with the Commission within thirty (30) days of the health care provider’s receipt of notice of the disputed Commission's decision or action or, in the absence of such a receipt, within sixty (60) days of the date of the Commission's making such disputed decision or taking such disputed action. Such time limitations are a condition of the right to litigate the decision or action and are jurisdictional.

3.5. Contents of the request for reconsideration. In its request for reconsideration, the health care provider shall clearly identify the decision or action disputed. The health care provider shall also clearly identify the bases upon which the health care provider disputes the decision or action.

3.6. Review. Upon the filing of a health care provider’s request for reconsideration, the Commission or its agent shall review the bases for the request. Such a review may include a meeting with the health care provider, a review of the health care provider’s records, or any other process calculated to provide the Commission with the relevant information necessary to perform its review. After reviewing the request, the Commission shall enter its final decision.

3.6.a. The Commission is required to enter a final decision or enter into an extension agreement with the health care provider within one hundred-twenty (120) days from the date the provider’s request for reconsideration is filed.

3.6.b. The Commission and the health care provider may enter into a written extension agreement to provide no more than an additional sixty (60) days for the Commission to enter a final decision.

3.6.c. The Commission's failure to enter a final decision within the initial time period or extended time period, where applicable, triggers a health care provider’s right to file a petition for hearing.

3.7. Effect of filing. The filing of a timely and complete request for reconsideration of a written decision or action of the Commission stays the tolling of the time limitations for filing a petition for hearing until the final decision is issued.

3.8. Example. The health care provider receives a decision from the Commission. The health care provider desires to dispute the decision or action. The health care provider must file a request for reconsideration of the decision or action and await the Commission's final decision in the matter, the expiration of the one hundred-twenty (120) day period for the Commission to issue a final decision, or the expiration of such additional written time extension agreement as limited by this rule. The final decision may be contested by filing a petition for hearing. Should the health care provider fail to file a timely and complete request for reconsideration, then the Commission's decision or action becomes final.

W. Va. Code R. § 85-28-4 Suspension or Termination

4.1. Consultation. The Executive Director shall consult with any of the following medical experts for purposes of determining whether a health care provider should be suspended or terminated pursuant to W. Va. Code Section §23-4-3c:

(1) Medical experts in the Workers’ Compensation Commission’s Office of Medical Services, including the Director or Associate Director;

(2) The Health Care Advisory Panel, or one or more of its members; or (3) Any other medical expert selected by the Executive Director, in his or her sole discretion.

4.2. Notification. When the Commission determines that there is probable cause to believe that a health care provider should be suspended or terminated under the provisions of W. Va. Code §23-4-3c, the Commission may proceed with the suspension or termination and shall thereafter provide written notice to the health care provider by United States mail, first class, postage pre-paid.

4.2.a. The written notice shall state the nature of the charges against the health care provider and the action taken or to be taken by the Commission.

4.2.b. The written notice shall state a time and place at which the health care provider shall appear to show cause why its right to receive payment from the Workers’ Compensation Commission for treatment of injured workers under W. Va. Code §23-1-1 et seq. should not have been or should not be suspended or terminated.

4.2.c. The written notice shall inform the health care provider that it is afforded the opportunity to review the Commission's evidence, to cross-examine the Commission's witnesses, and to present testimony and evidence in support of its position.

4.3. Final decision. Each notification of suspension or termination shall be considered a final decision of the Commission.

W. Va. Code R. § 85-28-5 Final decision; Petition for Hearing

5.1. Notice of final decision. The Commission shall notify each health care vendor of its final decision by United States mail, first class, postage pre-paid.

5.1.a. The notice of final decision shall include language to inform the health care provider that it is afforded the right to file a petition for hearing of the decision and provide an address where the request for reconsideration shall be filed.

5.2. Time limits. A petition for hearing shall be filed with the Commission within thirty (30) days of the health care provider’s receipt of notice of the disputed decision or action or, in the absence of such a receipt, within sixty (60) days of the date of the Commission's making such disputed decision or taking such disputed action. Such time limitations are a condition of the right to litigate the decision or action and are jurisdictional.

5.3. Contents of the petition for hearing. In its petition for hearing, the health care provider shall:

(1) clearly identify the decision or action disputed;

(2) clearly identify the bases upon which the health care provider disputes the decision or action; and (3) provide a summary of documentation supporting the health care provider’s position.

5.4. Collection of an alleged overpayment shall remain in abeyance until such time as the matter becomes final under these provisions.

W. Va. Code R. § 85-28-6 Hearings; General Provisions

6.1. All administrative hearings conducted pursuant to this rule will be held in accordance with the provisions of W. Va. Code Section §29A-5-1 et seq. and the provisions of this rule.

6.2. Representation. Corporations and the Commission may only be represented by an attorney duly licensed to practice law in the state of West Virginia.

6.3. Notice of scheduling/status conference or hearing. Unless waived by all parties, all such conferences or hearings shall be preceded by at least ten (10) calendar days written notice.

6.4. Counsel for the health care provider shall file a notice of appearance with the hearing officer, the Commission, and with the Commission designee along with the request for a hearing, or as soon thereafter as the attorney assumes representation of the health care provider.

6.5. The conference and hearings shall be held in Kanawha County, West Virginia, telephonically, or in the county designated by the Commission. The decision to hold the hearing in person or telephonically shall vest in the discretion of the hearing officer. The initial scheduling/ status conference shall be held within forty (40) calendar days from the receipt of protest, unless continued by agreement of the hearing officer and parties.

W. Va. Code R. § 85-28-7 Parties and Conduct of Hearings

7.1. At the initial scheduling/status conference, the hearing officer shall enter an Order establishing the following:

1. Hearing date;

2. The specific issues to be addressed;

3. The amount of contested overpayment;

4. Discovery cutoff, if discovery is requested by either party and deemed necessary by the hearing officer; and 5. Deadline for disclosure of all witnesses and documents to be offered by either party

7.2. At the time of the hearing, an opportunity shall be afforded to all parties to present relevant evidence. Testimony may be restricted if it appears that it is cumulative in nature, or if it is not relevant to the issues in dispute. Character evidence will not be admissible, as it does not pertain to the relevant issues at hand. Closing arguments shall be restricted to a brief presentation in written form. All of the testimony and evidence at the hearing shall be reported by stenographic notes and characters or by mechanical means. All rulings on the admissibility of testimony and evidence shall also be reported. All reported testimony and evidence at a hearing shall be transcribed, and a copy thereof furnished to the party upon its request.

7.3. All hearings shall be conducted in an informal and impartial manner. The hearing officer shall have the power to administer oaths and affirmations, certify official acts, take depositions, rule upon offers of proof, and receive relevant evidence, regulate the course of the hearing, hold conferences for the settlement or simplification of the issues, dispose of procedural requests, motions or similar matters, and take other such actions as are authorized by this rule.

7.4. Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence.

7.5. All witnesses who testify during a hearing shall first be subject to oath or affirmation, and any testimony submitted by deposition shall show on the face thereof that the witness was so qualified. Any transcript shall become part of the official record and relied upon for final decision.

7.6. The hearing officer may take notice of judicially cognizable facts. All parties shall be notified either before or during the hearing, or by reference on preliminary reports or otherwise, or the material to be noticed, and they shall be afforded an opportunity to contest the facts so noticed.

W. Va. Code R. § 85-28-8 Burden of Proof

There is a presumption that the Commission's decisions or actions are valid. The party contesting the Commission's decisions or actions has the burden of overcoming this presumption by satisfactory proof.

W. Va. Code R. § 85-28-9 Standard for Medically Unsupported Treatment

West Virginia Code Section §23-4-3c(a)(5) requires the Commission to establish criteria for determining whether a health care provider has made medically unsupported recommendations regarding a percentage of disability or has prescribed medically unsupported treatment, including medication. The criteria shall include, but not be limited to, the following:

9.1. Recommendations and treatment must be reflective of accepted standards of good practice, within the scope of practice of the provider’s license or certification;

9.2. Treatment must be curative or rehabilitative. Care must be of a type to cure the effects of a work-related injury or illness, or it must be rehabilitative. Curative treatment produces permanent changes which eliminate or lessen the clinical effects of an accepted condition. Rehabilitative treatment allows an injured or ill worker to regain functional activity in the presence of an interfering accepted condition. Curative and rehabilitative care produce long-term changes. On a case-by-case basis, the Commission may, in its sole discretion, authorize the use of treatment for conditions that are defined as long-term or chronic even though the treatment is not curative or rehabilitative;

9.3. Treatment shall not be proposed or delivered primarily for the convenience of the claimant, the claimant’s doctor, or any other provider;

9.4. Treatment shall be provided in the most cost-effective manner and in the least intensive setting consistent with the other criteria set forth herein;

9.5. Treatment shall not present hazards in excess of the expected medical benefits;

9.6. Treatment which is controversial, obsolete, investigational or experimental will be subject to strict scrutiny by the Commission and must be pre-authorized by the Commission; and

9.7. Recommendations regarding a percentage of disability shall reflect a consistent and correct application of the guidelines for the calculation of permanent partial disability as contained in the applicable rules of the Commission.

W. Va. Code R. § 85-28-10 Correction of the Record

Correction of the record shall be made by the hearing officer upon his or her own motion, or upon the written motion of either of the parties to the hearing.

W. Va. Code R. § 85-28-11 Subpoenas

11.1. All subpoenas and subpoenas duces tecum shall be issued in the name of the hearing officer and bear a facsimile of his or her signature, but the party requesting their issuance must sign the actual subpoenas and see that they are properly served. The subpoenas and subpoenas duces tecum must be issued through a party’s counsel as a member of the Bar and an officer of the Court. All requests by interested parties for subpoenas and subpoenas duces tecum shall be in writing, and shall contain a statement acknowledging that the requesting party agrees to pay service fees, fees for attendance, and travel for witnesses.

11.2. Every subpoena or subpoena duces tecum shall be served at least five (5) days before the return date thereof, either by personal service made by any person over eighteen (18) years of age, or by registered or certified mail. If service is by mail, then the five (5) day notice period shall not begin to run until the date the subpoena or subpoena duces tecum is received by the person or entity subject thereto as shown by the date on the return receipt.

11.3. Any person who serves any such subpoena or subpoena duces tecum shall be entitled to the same fee as sheriffs who serve witness subpoenas for the circuit courts of this state. Fees for the attendance and travel of witnesses shall be the same as for witnesses before the circuit courts of this state. All such fees related to any subpoena or subpoena duces tecum issued at the instance of an interested party shall be paid by the party who asks that such subpoena or subpoena duces tecum be issued.

11.4. In case of failure or refusal of any person to comply with any subpoena or subpoena duces tecum served on any person, or the refusal of any witness to testify to any matter regarding which he or she may be lawfully interrogated, the circuit court of the county in which the hearing is being held, or the judge thereof in vacation, upon application by the Commission, or hearing officer, shall compel obedience by attachment proceedings as for contempt of a subpoena or subpoena duces tecum issued from such circuit court or a refusal to testify therein.

11.5. Upon motion made promptly and in any event before the time specified in a subpoena duces tecum for compliance therewith, the circuit court of the county in which the hearing is being held, or the circuit court in which the subpoena dues tecum was served, or the judge if either such court in vacation, may grant any relief with respect to such subpoena duces tecum which either such court, under the West Virginia Rules of Civil Procedure for Trial Courts of Record, could grant, and for any of the same reasons, with respect to a subpoena duces tecum issued from either such court.

11.6. The issuance of a subpoena duces tecum will be refused only in an instance where there is good reason to believe that the subpoena power is being abused. All subpoenas and subpoenas duces tecum will state on their face the name of the party who requested it.

11.7. Any party filing a protest, by virtue thereof, has conceded jurisdiction and venue with respect to any and all subpoenas issued by the hearing officer with respect to any employee, officer, or representative of the contesting party and any and all notices of deposition or discovery request served by the Commission and deemed relevant by the hearing officer.

W. Va. Code R. § 85-28-12 Hearing Officers

12.1. Every hearing officer appointed by the Commission to conduct a hearing under this rule shall be an attorney licensed to practice law in this state.

12.1.a. The Commission may delegate the authority necessary for the conduct of certain proceedings under this rule to the chief administrative law judge of the office of judges. The chief administrative law judge is authorized to assign attorneys from the office of judges as hearing officers.

12.1.b. The Commission retains the right to appoint other attorneys as hearing officers for purposes of conducting specific hearings or types of hearings under this rule.

12.2. The hearing officers are authorized to receive and rule upon any procedural matter arising before, during and after a hearing.

12.3. Requests for continuances by a party shall not be granted as a matter of course, but only upon a showing of good cause.

W. Va. Code R. § 85-28-13 Conclusion of Hearing

13.1. At the conclusion of the hearing, the parties shall be permitted to file closing arguments, proposed findings of fact, conclusions of law, and such legal briefs or memoranda as they wish. The parties shall be permitted ten (10) calendar days to file such items which filings shall be concurrent.

13.2. The parties shall be permitted five (5) calendar days to respond to the filing of the other party, if desired. No further argument shall be permitted.

13.3. Thereafter, the hearing officer shall prepare a report and recommendation that shall contain proposed findings of fact and conclusions of law as suggested by the hearing officer for the Commission's approval.

13.4. The parties to the hearing shall then be permitted ten (10) days to file objections or comments upon the report and recommendations and five (5) more days to respond to each other's objections and comments.

13.5. Thereafter, the Commission shall decide whether to accept the report and recommendation, to reject it, to modify it, or to remand the matter back to the hearing officer for further proceedings or upon other instructions.

13.6. The Commission retains the right to review any and all proposed findings of fact against the record and to disagree therewith provided that the Commission states the basis for the disagreement in the final order.

13.7. The Commission shall render either a final order or an interlocutory order as the decision may require in which the Commission accepts in whole or in part the proposed findings of fact and conclusions of law submitted by the hearing officer and, to the extent that the Commission rejects or modifies the report or recommendation of the hearing officer, the Commission shall furnish his or her own findings of fact and conclusions of law.

13.8. A copy of the final order or decision of the Commission shall be served upon each party and the parties' attorneys of record, if any, either in person or by certified mail.

13.9. All appeals from the final order or decision of the Commission shall be taken pursuant to W. Va. Code §29A-5-4, in the circuit court of Kanawha County.

13.10. Upon appeal from the Commission's final decision, hearing officer shall transmit the entire record to the circuit court of Kanawha County, by either paper copy or any other electronic media that can be accommodated by the court in which relief is sought.

W. Va. Code R. § 85-28-14 Pending Petitions

All petitions for hearings filed pursuant to recovery letters generated or other administrative actions taken by the Commission or its agent or filed by health care providers pursuant to the provisions of 85CSR7, "Rules for Selected Hearings", prior to May 5, 2003, for which no hearing has been held shall be transferred to hearing officers designated by the Commission under this rule.

W. Va. Code R. § 85-28-15 Notices

15.1. General. Except as hereinafter provided, the name and address given by the health care vendor on the vendor application shall be used by the Commission for giving any notice required by the statute or by this rule, unless a formal request for a change of name or address is made by the health care vendor as hereinafter provided.

15.2. Change of name or address. Any health care vendor changing the name or the address of the business must promptly notify the Commission, in writing, and request that the name or address be changed on the Commission's records. Every health care vendor required to register with the Office of the Secretary of State shall provide evidence of any name change from that office.

15.3. Effect of failure to request change of name or address. In the absence of a written request for a change of name or address by the health care vendor, any notice given by the Commission to the health care vendor at the address and in the name shown on the Commission's records shall constitute constructive notice to the health care vendor of any action taken.

15.4. Legal notice to attorney or agent. In any matter arising under this rule in which the Commission is required to give notice to a party, if a party is represented by an attorney or other representative, then notice to the attorney or other representative shall be sufficient notice to the party so represented.

W. Va. Code R. § 85-28-16 Transition

16.1. Upon termination of the commission, disputes between health care providers and the insurance commissioner shall continue to be administered by the insurance commissioner in accordance with these rules.

16.2. Upon termination of the commission, disputes between health care providers and payors, such as the successor to the commission or other private carrier and self insured employers, shall not be subject to these rules, but shall be resolved in accordance with the arrangement between the health care provider and the payor.

W. Va. Code R. § 85-28-17 Severability

If any provision of this rule or the application thereof to any entity or circumstances shall be held invalid, such invalidity shall not affect the provisions or the applications of this rule which can be given affect without the invalid provisions or application and to this end the provisions of this rule are declared to be severable.

85CSR28

85CSR28

Series 31 Professional Employer Organizations

W. Va. Code R. § 85-31-1 General

1.1. Scope. -- This exempt legislative rule provides for the adoption and implementation of rules to regulate professional employer organizations (“PEOs”) regarding workers’ compensation.

1.2. Authority. -- W. Va. Code §§23-2C-22; 33-2-10(b); 33-2-21(a); and 33-46A-7. Pursuant to W. Va. Code §§23-2C-5(c)(2) and 33-2-10(b), workers’ compensation rules proposed by the Commissioner and adopted by the Industrial Council are not subject to legislative approval as would otherwise be required under W. Va. Code §29A-3-1, et seq. Public notice requirements of that chapter and article, however, must be followed.

1.3. Repeal of former rule. -- This exempt legislative rule repeals and replaces WV 85CSR31 “Employee Leasing” filed December 2, 2005 and effective January 2, 2006.

1.4. Filing Date. -- October 22, 2008.

1.5. Effective Date. -- November 21, 2008.

W. Va. Code R. § 85-31-2 Purpose of Rule

The purpose of this rule is to establish certain standards and provisions applicable to workers’ compensation insurance being provided to entities known a “PEOs”, as defined in this rule. The rule does not apply to temporary help agencies or those businesses engaged in the provision of contracted services, which are the primary or only services provided. However, it does apply to any temporary help agency which also enters into agreements to provide professional employer services to client employers, but the applicability of this rule is limited to such instances.

W. Va. Code R. § 85-31-3 Definitions

As used in this rule, the following terms, words and phrases have the meanings stated unless, in any instance where such term, word or phrase is used, the context expressly indicates that another meaning is intended.

3.1. “Agreement” means a written contract by and between a client-employer and a PEO under which a PEO contracts to provide professional employer services for an administrative fee, as otherwise consistent with the provisions of W. Va. Code §33-46A-6.

3.2. “Client employer” means an entity who enters into a professional employer agreement with a PEO.

3.3. “Commissioner” means the Insurance Commissioner of West Virginia.

3.4. “Covered employee” means a person employed by a client-employer for whom certain employer responsibilities are shared or allocated pursuant to a PEO agreement. Persons who are officers, directors, shareholders, partners and managers of the client-employer will be covered employees only to the extent expressly set forth in the professional employer agreement.

3.5. “Direct hire employee” means an individual who is an employee of the PEO and has no employment or working relationship with any client employer.

3.6. “Direct purchase basis” means an arrangement in which all contractual obligations under the insurance policy run directly between the insurer and the client employer without the involvement of the PEO.

3.7. “Master Policy Basis” means an arrangement under which a single policy issued to a PEO covers more than one client-employer.

3.8. “Multiple Coordinated Policy Basis” or “MCP Basis” means an arrangement under which a separate policy is issued to or on behalf of each client-employer but certain payment obligations and policy communications are coordinated through the PEO.

3.9. “PEO” is a professional employer organization as defined in W. Va. Code §33-46A-2(g).

3.10. “Private Carrier” means any insurer authorized by the Commissioner to provide workers’ compensation insurance pursuant to chapters twenty-three and thirty-three of the West Virginia Code.

3.11. “Residual Market” is the market of workers’ compensation insurance written pursuant to the assigned risk plan developed pursuant to W. Va. Code §23-2C-10.

3.12. “Voluntary Market” has the same meaning ascribed to it in W. Va. Code §23-2C-2(u).

W. Va. Code R. § 85-31-4 PEO Workers’ Compensation Insurance Policies

4.1. The purpose of this section is to implement W. Va. Code §33-46A-7 relating to workers’ compensation policies for PEOs and their client-employers.

4.2. In the voluntary market, workers’ compensation policies for PEOs and their client employers may be issued on a master policy basis, MCP basis or such other form as approved by the Commissioner.

4.3. Policies of worker’s compensation insurance for PEOs and their client employers in the residual market shall not be issued on a master policy basis. Such policies shall only be issued on forms submitted by servicing carriers and approved by the Commissioner.

4.4. Every policy form of workers’ compensation insurance to be used for PEOs and their client-employers must be filed by the private carrier using the policy or the Commissioner’s designated rating organization no less than sixty (60) days in advance of such policy being used by the private carrier. At the expiration of the sixty (60) day period, unless the period was extended by the Commissioner to obtain additional information from the private carrier, the form is deemed to be approved unless prior thereto it was affirmatively approved or disapproved by the Commissioner. Approval of any form under this subsection by the Commissioner constitutes a waiver of any unexpired portion of the sixty (60) day period.

W. Va. Code R. § 85-31-5 Data Collection and Proof of Coverage Reporting

5.1. Regardless of the basis on which coverage is provided for PEOs and their client employers, the private carrier shall collect and maintain payroll and claims data for each client employer in a manner that will permit an experience modification factor to be calculated separately for each client-employer who is eligible to be experience rated.

5.2. When a client employer, for whatever reason, purchases workers’ compensation coverage on a direct purchase basis, the client employer’s experience modification factor shall be based solely upon the client-employer’s own experience, including experience under past direct purchase policies and PEO policies, as applicable.

5.3. Carriers providing workers’ compensation insurance to PEOs shall comply with all data reporting requirements pursuant to the appropriate rating manual and rules submitted by the Commissioner’s designated rating organization for workers’ compensation.

5.4. Regardless of the basis on which coverage is provided for PEOs and their client employers, the private carrier is required to timely and accurately report information regarding policy issuance, renewal and cancellation as required by the provisions of W. Va. Code §23-2C-15(f) and W. Va. Code St. R. §85-8-9. The carrier must be able to report such information separately regarding both the PEO and each client employer.

5.5. Failure of the private carrier to collect, maintain and report data as required by this section may result in appropriate regulatory measures being taken against the carrier pursuant to chapter thirty-three of the West Virginia Code, including, but not limited to, fines, termination of ability to write workers’ compensation coverage to PEOs and termination of the carrier’s certificate of authority in West Virginia.

W. Va. Code R. § 85-31-6 Scope of Coverage for Master Policies

6.1. A workers’ compensation policy of insurance issued to a PEO on a master policy basis shall provide workers’ compensation to:

a. All the direct hire employees of the PEO;

b. All covered employees working for each client employer of the PEO; and c. All other employees of the PEO or client employer required to be provided West Virginia workers’ compensation coverage for whom there is no other workers’ compensation policy providing coverage effective on the relevant date of injury.

6.2. A workers’ compensation policy of insurance issued to a client employer on a multiple coordinated policy basis shall provide workers’ compensation to all covered employees working for the client employer and all other employees of the PEO or client employer required to have West Virginia workers’ compensation coverage for whom there is no other workers’ compensation policy providing coverage effective on the relevant date of injury.

6.3. If on the relevant date of injury there is both a PEO workers’ compensation policy in effect and a direct purchase policy in effect, the following shall apply:

a. If the claimant is a covered employee, then the PEO policy shall be the primary policy; or b. If the claimant is not a covered employee, then the direct purchase policy shall be the primary policy.

6.4. Under no circumstances shall this section be interpreted to have any legal effect on the terms, conditions or legal rights as between a private carrier, PEO and client employer established pursuant to a valid PEO agreement or insurance contract, or the right of a private carrier, PEO or client employer to enforce the same through various legal remedies.

W. Va. Code R. § 85-31-7 Notice of Coverage and Cancellation

7.1. Upon issuing a workers’ compensation policy to a PEO and its client employer on a master policy or MCP basis, the carrier shall promptly issue a certificate of coverage to each client covered under the policy.

7.2. Upon receiving notice that the PEO has added a client employer approved by the carrier to its master policy, a private carrier or its agent, if applicable, shall promptly issue a certificate of coverage to the newly added client employer.

7.3. A certificate of coverage issued under this section shall specify the effective date of the client employer’s coverage and the expiration date of the master policy under which such coverage is being provided.

7.4. In all workers’ compensation policies issued to PEOs and their client employers, the private carrier shall comply with W. Va. Code §23-2C-15(e) and W. Va. Code St. R. §85-8-9 regarding providing notice of cancellation, renewal and non-renewal: Provided, That, under a master policy, notice of cancellation of coverage to any client employer for any reason shall not be effective without thirty (30) days advance written notice. Every notice provided under this subsection shall be sent both to the PEO and client: Provided, That the client employer does not need to be provided notice of a renewal under the provisions of W. Va. Code St. R. §85-8-9.9.

85CSR31

85CSR31

Series 32 State Agency Revocation Or Refusal To Grant, Issue Or Renew Contracts, Licenses, Permits, Certificates Or Other Authority To Conduct A Trade, Profession Or Business To Or with an Employing Unit In Default Of its Workers' Compensation Obligations

W. Va. Code R. § 85-32-1 General

W. Va. Code R. § 85-32-2 Definitions

W. Va. Code R. § 85-32-3 General Prohibition

W. Va. Code R. § 85-32-4 Timing of Review

W. Va. Code R. § 85-32-5 Revocation

W. Va. Code R. § 85-32-6 Procedure for Petitioning for Exemption

W. Va. Code R. § 85-32-7 Procedures for Implementation

FILED

TITLE 85 EXEMPT LEGISLATIVE RULE WORKERS' COMPENSATION COMMISSION

2009 OCT -9 PM 2:50

OFFAL . LA AEGINA

SERIES 32

STATE AGENCY REVOCATION OR REFUSAL TO GRANT, ISSUE OR RENEW

CONTRACTS, LICENSES, PERMITS, CERTIFICATES OR OTHER AUTHORITY TO

CONDUCT A TRADE, PROFESSION OR BUSINESS TO OR WITH AN EMPLOYING

UNIT IN DEFAULT OF ITS WORKERS' COMPENSATION OBLIGATIONS. ### §85-32-1. General.

1.1. Scope. -- This legislative exempt rule is intended to set forth the procedures enabling the implementation of the provisions of W. Va. Code §§23-1-1b(g)(16), 23-2C-15(d) and 23-2C- 19(e) that requires agencies to revoke and prohibits agencies from granting, issuing, or renewing any contract, license, permit, certificate, or other authority to conduct a trade, profession, or business to or with any employing unit which is on the workers' compensation default list.

1.2. Authority. -- W. Va. Code §§23-1-1b(g)(16), 23-2C-15(d) and 23-2C-19(e). Pursuant to W. Va. Code §§23-2C-22; 33-2-10(b) and 33-2-21(a), workers' compensation rules proposed by the Insurance Commissioner and approved by the Industrial Council are not subject to W. Va. Code §§29A-3-9 through 29A-3-16, inclusive.

1.3. Filing Date. -- October 9, 2009.

1.4. Effective Date. -- November 8, 2009. ### §85-32-2. Definitions.

As used in this rule, the following terms and words have the meanings stated, unless the context clearly indicates otherwise.

2.1. "Agency" includes any unit of state government such as officers, agencies, divisions, departments, boards, commissions, authorities, or public corporations.

2.2. "Applicant" means an employing unit that is seeking the issuance, granting or renewal of an approval document.

2.3. "Application" means a completed form or other document, including a proposed contract, seeking the issuance, granting or renewal of an approval document regardless of the name assigned to it.

2.4. "Approval document" means any contract, license, permit, certificate, or other authority to conduct a trade, profession, or business

2.5. "Default" means being on the Workers' Compensation Default List as defined in W.

Va. CSR §85-11-2.12.

2.6. "Employing unit" means an employer subject to chapter twenty-three of the West Virginia Code, as defined in the provisions of W. Va. Code §23-2-1.

2.7. "Grant" and "issue" include not only the original issuance or granting of an approval document but also any renewal, transfer, assignment or sale of the document, if otherwise, allowed.

2.8. "Default list" means the Workers' Compensation Default List as defined in W. Va. CSR

§85-11-2.12.

2.9. "Person" means any public or private corporation, institution, association, firm or company organized or existing under the laws of this or any other state or county; any governmental agency; political subdivision; county commission; municipality; industry; public service district; partnership; trust; estate; person or individual; and group of persons or individuals acting individually or as a group or any other legal entity whatever.

2.10. "Payment agreement" means an agreement under the provisions of W. Va. CSR §85- 11-12.

2.11. "Review" means either to query a computerized database or list to determine if the applicant's name is included as being in default by the Commission or, upon termination of the Commission, the Insurance Commissioner.

2.12. "Insurance Commissioner" means the Insurance Commissioner of West Virginia as provided in section one, article two, chapter thirty-three of the West Virginia Code.

2.13. "Insurer" shall mean 1) a self-insured employer; or 2) a private carrier. ### §85-32-3. General Prohibition.

Pursuant to the provisions of W. Va. Code §§23-1-1b(g)(16), 23-2C-15(d) and 23-2C-19(e), an agency shall not grant, issue, or renew any approval document to, or enter into an approval document with, any applicant who is on the Default List. ### §85-32-4. Timing of Review.

4.1. After an application is complete and no further changes may be made to it prior to its final approval and before it is issued, an agency shall review the Default List. This does not prevent a review prior to that time and notifying the applicant of the results.

4.2. If the applicant's name appears on the Default List, an agency shall notify the applicant in writing, as in their normal course of business, that the agency has been informed that the applicant is on the Default List and that the approval document can not be issued until the applicant is no longer on the list.

4.3. Nothing in this section shall prevent the agency from providing any applicant, employing unit or person the standard due process which the agency avails to any party aggrieved by action of the agency with regard to the refusal to issue approval documents. ### §85-32-5. Revocation.

5.1. Pursuant to the provisions of W. Va. Code §§23-1-1b(g)(16), 23-2C-15(d) and 23-2C- 19(e), an agency shall revoke any approval document of any employing unit whose account is on the Default List.

5.2. If the Insurance Commissioner has reason to believe that an employing unit that is in default is conducting its business in West Virginia under the authority of an approval document issued by an agency, the Insurance Commissioner shall notify the agency of its duty to revoke the approval document.

5.3. If the agency determines that an employing unit subject to the notification in subsection

5.2. is conducting business under the authority of an approval document issued by the agency, the agency shall notify the employing unit in writing, as in their normal course of business, that the agency has been notified that the employing unit is on the Default List and that the approval document must be revoked until the employing unit is no longer on the list.

5.4. Nothing in this section shall prevent the agency from providing any applicant, employing unit or person the standard due process which the agency avails to any party aggrieved by action of the agency with regard to the revocation of approval documents. ### §85-32-6. Procedure for Petitioning for Exemption.

6.1. An agency may petition the Insurance Commissioner for an exemption from the provisions of this rule.

6.2. If the agency petitions to be exempt, it must clearly demonstrate to the Insurance Commissioner that the provisions of the rule are unduly burdensome and that its efforts in complying with the rule do not result in an incentive for any significant number of employers to comply with West Virginia's workers' compensation laws. ### §85-32-7. Procedures for Implementation.

Notwithstanding other provisions of this rule, the Insurance Commissioner and the Tax Commissioner may adopt mutually agreed procedures for automated review and matching of Tax Department databases with databases of the Insurance Commissioner for implementation of this

rule.

PUBLIC HEARING JULY 30, 2009

OFFICES OF THE WEST VIRGINIA INSURANCE COMMISSIONER WORKERS' COMPENSATION INDUSTRIAL COUNCIL

TITLE 85, SERIES 32

State Agency Revocation or Refusal to Grant, Issue or Renew Contracts, Licenses, Permits, Certificates or Other Authority to Conduct a Trade, Profession or Business to or with an Employing Unit in Default of its Workers' Compensation Obligations Transcript of the Public Hearing held on Thursday, July 30, 2009, at 3:00 p.m., Offices of the West Virginia Insurance Commissioner, 1124 Smith Street, Room 400, Charleston, West Virginia.

Industrial Council Members Present:

Bill Dean, Chairman Kent Hartsog Dan Marshall Walter Pellish (via telephone)

Chairman Bill Dean: This is Title 85, Series 32, State Agency Revocation or Refusal to Grant, Issue or Renew Contracts, Licenses, Permits, Certificates or Other

Authority to Conduct a Trade, Profession or Business to or with an Employing Unit in Default of its Workers' Compensation Obligations. Ryan, do you have anything you would like to comment on?

Ryan Sims (Associate Counsel, OIC): No. We did not receive any written comments on Title 85, Series 32.

Chairman Dean: Does anybody from the general public have anything they would like to comment on? We will close the public hearing on Title 85, Series 32. [There were no comments.] ## Industrial Council Meeting PUBLIC HEARING Title 85, Series 32 STATE AGENCY REVOCATION OR REFUSAL TO GRANT, ISSUE OR RENEW CONTRACTS, LICENSES, PERMITS, CERTIFICATES OR OTHER AUTHORITY TO CONDUCT A TRADE, PROFESSION OR BUSINESS TO OR WITH AN EMPLOYING UNIT IN DEFAULT OF ITS WORKERS' COMPENSATION OBLIGATIONS Offices of the West Virginia Insurance Commissioner July 30, 2009 Name Address Telephone Number Group Affiliation Do you desire to address the Council?

Agenda item to which you desire to speak