The Opinion of the Court was delivered PER CURIAM.
In this case, we reverse a circuit court decision that upheld a decision by the
worker's compensation commissioner to transfer funds from one employer account to
another account. We remand the case for further proceedings.
The Division's action was based upon an alleged default by Raleigh, which occurred as a result of the Division's combination of Teays' and Raleigh's experience ratings, and subsequent recalculation of Raleigh's premium rate. The recalculated rate was higher than Raleigh's existing rate. The Division backdated the recalculated rate to the beginning of the year, thereby placing Raleigh in default. The Division then cured the default by transferring money from Teays' deposit account to Raleigh's deposit account, and then by applying money from Raleigh's deposit account to offset the amount of Raleigh's default.
The appellants have asserted several grounds in challenging the legality of the
Division's actions. We have reviewed those grounds and find that one ground - due process - is dispositive in the appellants' favor. We therefore reverse the circuit court's ruling and
remand this case for further proceedings.
In Mid-Eastern Geotech v. Lewis, 173 W.Va. 485, 318 S.E.2d 428 (1984), this
Court stated in the Syllabus:
Where an employer required to subscribe and pay premiums to the West Virginia Workers' Compensation Fund was determined by the West Virginia Workers' Compensation Commissioner to be in default for failure to pay interest assessed for past due quarterly premium payments, and that employer received no notice of the interest assessment and, nevertheless, maintained its account with the workers' compensation fund at the level required by law by way of the payment of premiums and the payment of periodic account deficiencies, that employer was entitled to notice in writing of its right, under the provisions of W.Va. Code, 23-2-5b , to apply to the Commissioner for a settlement of the amount of the employer's default.
While the record is not entirely clear as to the detailed course of conduct by the Division and the appellants in the instant case, it is undisputed by the Division that the appellants - prior to the Division's actions that are challenged in this case - did not receive the due process written notice that is required by the statutes and our decision in Mid-Eastern Geotech, supra.
With respect to the written notice issue, the Division states in its brief that any asserted bureaucratic bungling on the part of the Workers' Compensation Division, even if true, is largely irrelevant.
The appellants, on the other hand, state that [t]he funds in dispute were in the
possession of the State and adequate to pay the alleged delinquency and leave a substantial
deposit for the next quarter. The Division could have held the funds or paid the same into
an interest bearing escrow account until [the issues] were resolved as to Raleigh's
delinquency. . . . The funds were not at risk. Therefore, the Division was not compelled to
take unilateral action until full due process had been granted.