The third phase begins on July 1, 2008, when the West Virginia workers' compensation market will be opened to competition and Brickstreet will no longer be the sole source of workers' compensation coverage to private employers. However, Brickstreet will continue be the single provider of workers' compensation coverage for all state agencies, boards, commissions, and higher education through 2012. In 2013, the state agencies will be permitted to purchase coverage from any carrier.

With the recent changes, there are significant beneficial provisions in Senate Bill 1004. For example, the employer has subrogation rights to all workers' compensation benefits, and workers' compensation claims can be settled without approval from the Office of Judges. At this moment, many private insurance carriers are investigating their potential to write workers' compensation coverage in West Virginia. And on July 1, 2008, employers, except state and local governments, can purchase workers' compensation coverage from private insurance carriers.

On the way to a competitive market, there have also been significant legislative changes in West Virginia. For example, Senate Bill 571 provides a rebuttal presumption that cardiovascular injuries or diseases are compensable for professional firefighters. The qualifications are that the firefighter must have been a paid firefighter and active for the two previous years and must have worked a training session, drill, or fire-related call within the past six months where an actual fire occurred. In House Bill 4079, professional employer organizations (PEOs) are regulated and they are required to be licensed by the insurance commissioner by July 1, 2009.

Another bill, House Bill 4381, calls for a residual or assigned risk pool and the creation of a guaranty association. Also, the requirement that private carriers maintain an office in West Virginia has been eliminated. Effective Jan. 1, 2009, the insurance commissioner is allowed to designate an administrator of the assigned risk pool.

Under House Bill 4636, which some refer to as the "clean-up bill," the time frame for an injured worker to protest a decision is extended from 30 days to 60 days. Also, as of July 1, 2008, state-mandated surcharges on all workers' compensation policies are capped at nine percent for deficit reduction and 5.5 percent for the administrative operations of the insurance commissioner.

It is important to note for those carriers interested in competing in the West Virginia market that insurance adjusters must be licensed in the state of West Virginia. Although there is no requirement that adjusters reside in the state, the adjuster must pass the state adjusters' examination. However, there is no need for an adjuster to take the West Virginia adjuster licensing examination if the adjuster resides in a state other than West Virginia and that state requires the adjuster to pass an examination to obtain the adjuster's license. The adjuster must have a West Virginia non-resident adjuster license if TPAs use non-resident adjusters.

Maureen Kowalski is a shareholder in the Pittsburgh-based law firm of Dickie, McCamey & Chilcote, P.C. and concentrates her practice on workers' compensation law. She may be reached at [email protected], www.dmclaw.com.