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West Virginia Workers Compensation Laws

Workers compensation law, rules and policy information for the State of West Virginia

State:  West Virginia

Updated:  01-10-2017

Authority/State Rating Bureau:  NCCI

National Council on Compensation Insurance (NCCI)
901 Peninsula Corporate Circle
Boca Raton, FL 33487-1362
800-622-4123

On January 1, 2006 West Virginia abolished the former Workers' Compensation Commission and replaced it with a new employers' mutual insurance company called BrickStreet Mutual Insurance Company. On July 1, 2008 West Virginia's insurance market opened to all private carriers licensed to do business in West Virginia. BrickStreet Mutual Insurance Company will continue to be the only source of workers' compensation coverage for all state agencies, boards, commissions and higher education through 2012 when in 2013 these state agencies will be able to purchase coverage from any insurance carrier licensed to conduct business in West Virginia. Benefit levels for injured workers remain under exclusive state control and claim decisions will be reviewable by the Office of Judges, the Board of Review and the Supreme Court of Appeals as mandated in WV Code.


Compulsory:  Yes

Private Insurance:  Allowed

Self-Insurance:  Allowed

State Fund:  The state fund was converted to a competitive carrier now know as BrickStreet Mutual Insurance Company. You can contact them at:

BrickStreet Insurance
400 Quarrier St.
Charleston, West Virginia 25301
1-866-452-7425
1-304-941-1000
Fax 304-941-1151
http://www.brickstreet.com

Assigned Risk:  The assigned risk plan is currently being ran exclusively by Brickstreet Mutual until January 1, 2009. After 1-1-9, the West Virginia Assigned Risk Plan will be administered by NCCI, the National Council on Compensation Insurance.



Numerical Exceptions:  None. All West Virginia employers are required to maintain workers compensation coverage. An employer who is otherwise required to maintain mandatory West Virginia workers’ compensation coverage is exempt from the requirement in the following circumstances:
  • An employer of domestic services (refer to statute for clearification) is not required to carry West Virginia workers’ compensation coverage for any individuals hired to perform such domestic services;
  • 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;
  • An employer who is a casual employer;
  • An employer who is a church;
  • 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 horseracing 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;
  • 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
  • An employer of employees who are provided coverage for benefits under the federal Long shore 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 Long shore and Harbor Workers’ Compensation Act.


An employer may apply to the Insurance Commissioner on forms supplied by the Insurance Commissioner for a letter of exemption from coverage.


Individual Waivers Allowed:  It is unclear at this time as to the validity of waivers in West Virginia. Please refer to the state statutes.

Small Deductible Program:
Sole Proprietor:  Included/may elect to be exempt. When included a rating payroll of $37,000 is used for the sole proprietor as of 11-1-11, $38,600 as of 11-1-2012, $39,300 as of 11-1-2013. $39,500 as of 11-1-2014. $40,500 as of 11-1-2015. $40,900 as of 11-1-2016.

Partners:  Included/may elect to be exempt. When included a rating payroll of $37,000 is used for the sole proprietor as of 11-1-11, $38,600 as of 11-1-2012, $39,300 as of 11-1-2013. $39,500 as of 11-1-2014. $40,500 as of 11-1-2015. $40,900 as of 11-1-2016.

Corporate Officers:  Included in coverage/may elect to be exempt - 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 Act. You must refer to statute for a more detailed description of who qualifies to be exempt. When included the rating payroll is banded between a minimum of $36,400 and a maximum of $145,600 as of 11-1-11, $39,000 / $156,000 as of 11-1-2012, $39,000 / $156,000 as of 11-1-2013. $39,000 / $156,000 as of 11-1-2014. $41,600 / $161,200 as of 11-1-2015. $800 min / $3,100 max per week as of 11-1-2016.

LLC Members:  Included in coverage/may elect to be exempt - 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. When included the rating payroll is banded between a minimum of $36,400 and a maximum of $145,600 as of 11-1-11, $39,000 / $156,000 as of 11-1-2012, $39,000 / $156,000 as of 11-1-2013. $39,000 / $156,000 as of 11-1-2014. $41,600 / $161,200 as of 11-1-2015. $800 min / $3,100 max per week as of 11-1-2016.

Election or Rejection of Coverage Forms:

Other West Virginia Workers Compensation Forms: Access West Virginia Workers Compensation Forms

Note About Forms:  Also be sure to contact your insurance company for information about additional forms they may use for exclusion or inclusion of coverage.



Contractors:  Independent contractors: All individuals performing services for compensation paid by an employer are presumed to be employees and required to be covered by a West Virginia workers’ compensation insurance policy unless and until it is shown that the worker is an independent contractor. The burden of proving that an individual is an independent contractor is at all times, on the party asserting independent contractor status. For purposes of West Virginia workers’ compensation coverage only, the following criteria are dispositive of whether an individual is an independent contractor:
  • For workers who are working in a hazardous industry, the following criteria must be met to be an independent contractor:
    • The individual holds himself or herself out to be in business for himself or herself. Examples of facts supporting this include, but are not limited to:
      • The individual possesses a license, permit or other certification required by federal, state and/or local authorities of businesses or individuals engaging in the type of work that is being performed by the individual;
      • The individual has entered into, or regularly enters into, verbal or written contracts with the persons and/or entities for whom the work is being performed, which have terms and conditions consistent with the other criteria stated in this subsection;
      • The individual has the right, pursuant to written contractual provisions entered into with the persons and/or entities for whom the work is being performed, to regularly solicit business from different persons or entities to perform for compensation the type of work that is being performed by the individual;
    • The individual has control over the time when the work is being performed, and the individual’s work schedule is not dictated by the person or entity for whom the work is performed. This criterion does not prohibit the person or entity for whom the work is performed from reaching agreement with the individual as to completion schedule, range of work hours, and maximum number of work hours to be provided by the individual, and, in the case of entertainment, the time such entertainment is to be presented;
    • The individual has control and discretion over the means and manner of performance of the work being performed and in achieving the result of the work. In other words, the individual is not being supervised by the person or entity for whom the work is performed on an ongoing basis, but rather, the individual is given a description and expectation of the work to be performed at the outset of the retention of the individuals’ services and then is expected to perform the services contracted for without any ongoing supervision. The mere fact that a person or entity for whom the work is being performed checks on the status of the work from time to time, or otherwise monitors the work being performed for the purposes of legal compliance with federal or state laws related to safety does not constitute supervision on an ongoing basis;
    • Unless expressly required by law, the individual is not required to work exclusively for the person or entity for whom the work is performed; and
    • If the use of equipment is required to perform the work, the individual provides most significant equipment required to perform the job. Some examples would be:
      • An independently contracted truck or delivery driver must use his or her own truck or delivery vehicle;
      • An independently contracted taxi cab driver must use his or her own vehicle;
      • An independently contracted timbering worker must use his or her own timbering equipment.

In the above examples, “his or her own” means that the equipment is not provided by, loaned, or leased to the individual worker by the person or entity for whom the work is being performed, but rather, the individual performing the work owns, or legally obtains the equipment from a separate source (i.e., not the person or entity for whom the work is being performed), and has the legal right to use the same.
  • For all other workers (i.e., workers not involved in a hazardous industry), the following criteria must be met:
    • The individual possesses a license, permit or other certification required by federal, state and/or local authorities of businesses or individuals engaging in the type of work that is being performed by the individual;
    • There is a written contract between the individual and the person or entity for whom the individual is performing services clearly establishing that the individual is an independent contractor and not an employee, and that the individual will not be provided workers’ compensation coverage by the person or entity for whom the work is being performed; and
    • The individual maintains primary control over the time, means and manner of the work performed. For example, the person or entity for whom the services are being performed may specify that the contractee wants a particular project or type of work to be done and a certain time frame for the work to be completed, but the person or entity for whom the services are being performed cannot exert control over the day-to-day schedule of the individual or continuously supervise the individual as a boss would in an employment situation.


Special Notes:  The West Virginia Offices of the Insurance Commissioner appointed NCCI as the workers compensation rating organization for the state in 2005. It was a key step in moving West Virginia’s monopolistic state fund to a competitive workers compensation market with a beginning date of July 1, 2008.

NCCI’s Basic Manual for Workers Compensation and Employers Liability Insurance has been approved for use by the West Virginia effective July 1, 2006. All West Virginia workers compensation policies with an effective date on or after July 1, 2006 are subject to NCCI’s Basic Manual rules governing the assignment of workers compensation classification codes, policy premium basis, payroll allocation, rating definitions and application of all premium generating elements.


Experience Rating Eligibility:  West Virginia employers will receive an experience modification rate or EMR when they meet one of these triggers:
  • $9,000 in policy premium is generated during the last year or last two years.
  • $4,500 is the average policy premium generated for more than two years.


West Virginia Workers Compensation Subrogation:  The State of West Virginia provides statutory information about workers compensation subrogation in state statute 23-2A-1. It's found under Chapter 23, Workers Compensation; Article 2A, Subrogation. This section of code is called; Subrogation; limitations. The statute is viewable online and you can use the link provided below and you will be taken immediately to this statute.

West Virginia Statute Of Subrogation





Regulated By: 

Insurance Commissioner
State of West Virginia
PO Box 50540
1124 Smith St.
Charleston, WV 25305-0540
304-558-3386
888-879-9842
http://www.wvinsurance.gov

Workers Compensation Statute: 

West Virginia Workers Compensation Statute


Didn't find what you're looking for? Search here for more about West Virginia rules: 



Information on this page is provided only as a reference. While we strive to mantain accurate information on this site please realize workers compensation laws are complicated and subject to change at any time. No warranty as to the accuracy or completeness of this information is provided or to be implied. You must verify this data before use with the individual governing authority for this state. If you need help with a workers compensation problem or have a specific situation or question please contact our office. Otherwise please consult your states governing authority or an attorney in your state of residency for assistance.




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