W. Va. Code R. § 115-7-6 - Payment of Compensation

6.1. If the agency's fund's actuary determines that the fund is actuarially sound and fully funded, or otherwise sufficiently funded to make payments to eligible claimants using any of the methods set forth in this section, the agency may, but is not required to, make a payment or payments out of the fund to a qualified claimant following a judgment or settlement of a claim arising under the medical professional liability act.

6.2. The agency, in exercising its discretion regarding payments to eligible claimants following judgment or settlement of a claim, shall determine whether a payment from the fund to a qualified claimant is in the best interests of the fund and other claimants. In making this determination the agency may consider the following:

6.2.a. The current actuarial soundness of the fund;

6.2.b. The sufficiency and strength of the proof in the claim settlement or the underlying medical professional liability civil action establishing the following:

6.2.b.1. Legal liability under the medical professional liability act;

6.2.b.2. The fault of the respective responsible persons;

6.2..b.3. The exhaustion of all reasonable means to recover from all available insurance and collateral sources;

6.2.c. Any other matter deemed relevant by the agency, including but not limited to the total amount of awards that become final in a fiscal year. The agency reserves the right to fully investigate all relevant issues prior to reaching a determination.

6.3. Upon a final determination approving payment to a qualified claimant as provided in these rules, the agency shall, to the extent funds are available, make a payment in satisfaction or partial satisfaction of the claim for economic damages. Compensation payments may be made only to qualified claimants who would have collected economic damages but for the statutory limitations on recovery of economic damages.

6.4. Subject to the provisions of section 6.5 of this rule, the amount payable by the fund to a qualified claimant is the amount of uncollectible economic damages. In determining the amount of uncollectible economic damages, payments of available insurance in the underlying professional medical liability action are considered to have been applied first to satisfy any economic damages award.

6.5. The maximum amount payable out of the fund in respect to any one occurrence shall be the lesser of: one million dollars or the maximum amount of money that could have been collected for applicable insurance and collateral sources prior to the creation of the fund. For purposes of this rule, amounts payable by any insurance guaranty funds due to the insolvency of an insurance company are deemed applicable insurance.

6.6. The agency, in its discretion, may make payments to a qualified claimant in a lump sum amount or in the form of periodic payments in the form of a structured payment plan using federally-qualified assignments.

6.7. If, after the payment of all expenses incurred for the administration of the fund during the fiscal year, the available cash and invested assets remaining in the fund are insufficient to pay in full all claims for uncollectible economic damages that have become final during the fiscal year, the board, in its discretion, may do any of the following, alone or in combination:

6.7.a. Make prorated payments on claims in a manner so that each qualified claimant with a final claim receives the same percentage of compensation as his or her amount of approved and outstanding compensation at the end of the fiscal year relates to the total amount of all approved and outstanding compensation at the end of the fiscal year; or

6.7.b. Make payments in the form of periodic installments, which may, but are not required to be in the form of a structured payment plan using federally-qualified assignments. If a structured settlement is used, the final award representing uncollectible economic damages from the PICF shall be the amount received by the claimant via the structured settlement and shall not be the amount used to fund the purchase of the structured payment plan;

6.7.c. Place a claim or claims in nonpayment status until such time as sufficient moneys are received by the fund to initiate or resume payments.

6.8. If claims are prorated, paid in periodic installments other than through a structured payment plan, or placed in nonpayment status in any fiscal year, any amounts due and unpaid to qualified claimants for final awards shall be carried forward and be paid in subsequent fiscal years from available funds using any of the methods set forth in this section. Payment may be made in subsequent fiscal years only to the extent funds are available and sufficient to pay administrative and operating expenses and make claim payments._

6.9. Unpaid claims are not a debt of the state of West Virginia or a charge against the general revenue fund or any other state fund. The state shall not be liable for any of the liabilities of the fund, and payments in future years shall be entirely dependent on the contributions, revenues or moneys paid into the fund by the state or from any other source.

Notes

W. Va. Code R. § 115-7-6