Employers may participate in the mandatory portions of the workers' compensation system in one of three   (See footnote 4)  ways: (1) by subscribing to the program for coverage of all risks; (2) by subscribing for a portion of risk coverage through the program but self- insuring against other risks; or (3) by electing to self-insure against all risks. Employers obtaining coverage by subscribing to the workers' compensation system pay premiums which are based upon: their respective payrolls for or hours worked by their employees; the business or function of those employees; the loss record of the employer over the years; and the cost of administering the system. The premiums are intended by law to cover the cost of administering the system and paying the benefits provided for those suffering workplace injuries or diseases.

    In lieu of subscribing to the Fund and paying premiums for risk coverage under the system, employers with the financial ability to elect to be self-insured as to all or part of their liabilities may do so under the Act.   (See footnote 5)  Claims originating from employees of self-insured employers are processed and administered by the Division; however, the benefits due an employee for any injury for which the employer is self-insured are considered wholly the responsibility of the employer. Unlike subscribing employers for whom “charges” to their respective accounts mean simply the potential for higher premium payments in the future, employers self-insured for particular risks have the obligation to actually pay from their own resources any benefits due their injured employees.

    Self-insured employers are required to contribute to “the expense of the administration” of the workers' compensation system by paying a portion of the premiums paid by subscribing employers. W. Va. Code § 23-2-9. Further, self-insured employers are required to post a bond with the Division, expected to be sufficient to cover claims for which the employer may later become liable but be financially unable to pay from available resources. Id.

    In addition, state law had for some years required the Division and its predecessors to fix and collect premiums sufficient to develop a “surplus fund” to cover long- term liabilities of the system. The surplus fund was statutorily required to contain a special component known as the “second injury reserve,” often referred to as the “second injury fund.” The second injury fund comes into play when

    an employee who has a definitely ascertainable physical impairment, caused by a previous occupational injury, occupational pneumoconiosis or occupational disease . . . becomes permanently and totally disabled through the combined effect of such previous injury and a second injury received in the course of and as a result of his or her employment. . . .

W. Va. Code § 23-3-1(d)(1). The policy initially underlying the second injury fund was to encourage employers to hire people who may have suffered an earlier injury. This incentive allows a second or subsequent employer subscribing to the second injury fund to be charged only with the benefits directly attributable to the second injury when a previously injured employee suffers a subsequent injury resulting in a disability; if the injury results in a life award by reason of the employee being totally disabled, the second injury fund and not the current employer is charged with the costs of the life award. In contrast, employers not subscribing to the second injury fund, electing instead to self-insure against such second injuries, are charged the entire cost of a second injury life award. The legislative directive regarding the creation of a second injury reserve within the surplus fund contemplated the existence of a reserve for the payment of at least some of the cost of any such life award to a previously injured employee who later becomes totally disabled.

    As related earlier, qualifying employers may elect to fully self-insure against all workplace risks or to self-insure against specific risks. Thus, an employer may be self- insured with respect to all general workers' compensation claims but elect to pay additional premiums to the Division for so-called second injury and catastrophe risks,   (See footnote 6)  whereby life awards arising out of second injuries or awards of benefits arising from catastrophic events are paid by the system rather than the employer. In such instances, the otherwise self-insured employer is in the same posture as any other subscribing employer. Alternatively, an employer may elect to self-insure against second injuries   (See footnote 7)  and catastrophic risks. If self-insured with respect to second injuries, the employer undertakes to pay all workers' compensation second injury benefits thereafter due, including life awards, whether such benefits arise solely from second injuries or a combination of a second injury and previous injuries.

    The three employer Appellants in the case before us are required to participate in the workers' compensation program and have elected to self-insure their risks, albeit in somewhat different ways. EACC is self-insured for general workers' compensation liabilities and subscribes to the Division for second injury coverage; Weirton Steel and Pine Ridge are wholly self-insured against general and second injury risks.   (See footnote 8)  All of Appellants pay some level of premiums, the calculation of which was affected by legislative amendments enacted in the 1990's.

    In 1993 and 1995, the Legislature substantially amended the Act. The 1993 amendments included the creation of a Compensation Programs Performance Council (hereinafter “Performance Council”) consisting of nine members: four representing the interests of employers, four representing the interests of employees, and the Commissioner. See W. Va. Code § 21A-3-3.

    In the 1995 amendment of the Act, the Legislature enacted a comprehensive revision of the requirements and methods for determining premiums for workers' compensation coverage and made specific changes to certain provisions concerning entitlement to benefits under the Act. W. Va. Code § 23-2-4. Because of the extensive revision in 1995 of the provisions of West Virginia Code § 23-2-4, a comparison of the statute as it appeared in 1993 versus 1995 will aid our discussion. The 1993 version of this section reads as follows:

    § 23-2-4. Classification of industries; accounts; rate of premiums; prior notice of rate changes; exceptions.

        The commissioner shall distribute into groups or classes the employments subject to this chapter, in accordance with the nature of the business and the degree of hazard incident thereto. And the commissioner shall have power, in like manner, to reclassify such industries into groups or classes at any time, and to create additional groups or classes. The commissioner may make necessary expenditures to obtain statistical and other information to establish the classes provided for in this section.

        The commissioner shall keep an accurate account of all money or moneys paid or credited to the compensation fund, and of the liability incurred and disbursements made against same; and an accurate account of all money or moneys received from each individual subscriber, and of the liability incurred and disbursements made on account of injuries and death of the employees of each subscriber, and of the receipts and incurred liability of each group or class.

        In compensable fatal and total permanent disability cases, other than occupational pneumoconiosis, the amount charged against the employer's account shall be such sum as is estimated to be the average incurred loss of such cases to the fund. The amount charged against the employer's account in compensable occupational pneumoconiosis claims for total permanent disability or for death shall be such sum as is estimated to be the average incurred loss of such occupational pneumoconiosis cases to the fund.

        It shall be the duty of the commissioner and the compensation programs performance council to fix and maintain the lowest possible rates of premiums consistent with the maintenance of a solvent workers' compensation fund and the creation and maintenance of a reasonable surplus in each group after providing for the payment to maturity of all liability incurred by reason of injury or death to employees entitled to benefits under the provisions of this chapter. A readjustment of rates shall be made yearly on the first day of July, or at any time the same may be necessary. At such times as the commissioner elects to readjust the base rates for the various industrial classifications, the commissioner shall file a schedule of the readjusted base rates for each industrial class with the office of the secretary of state for publication in the state register pursuant to article two [§ 29A-2-1 et seq.], chapter twenty-nine-a of this code. Such schedule shall be so filed at least thirty days prior to the first day of the quarter to which an adjustment of rates is to be applicable. At such times as the commissioner elects to readjust the individual merit rates for the subscribers to the fund, the commissioner shall provide notice of such merit rate adjustments to the affected employers at least thirty days prior to the first day of the quarter to which an adjustment of rates is to be applicable. The commissioner shall not retroactively increase or decrease rates except in instances of fraud, mistake or reliance upon incorrect information furnished by the employer. The determination of the lowest possible rates of premiums within the meaning hereof and of the existence of any surplus or deficit in the fund shall be predicated solely upon the experience and statistical data compiled from the records and files in the commissioner's office under this and prior workers' compensation laws of this state for the period from the first day of June, one thousand nine hundred thirteen, to the nearest practicable date prior to such adjustment: Provided, That any expected future return, in the nature of interest or income from invested funds, shall be predicated upon the average realization from investments to the credit of the compensation fund for the two years next preceding. Any reserves set up for future liabilities and any commutation of benefits shall likewise be predicated solely upon prior experience under this and preceding workers' compensation laws and upon expected realization from investments determined by the respective past periods, as aforesaid.

        The commissioner and the compensation programs performance council may fix a rate of premiums applicable alike to all subscribers forming a group or class, and such rates shall be determined from the record of such group or class shown upon the books of the commissioner: Provided, That if any group has a sufficient number of employers with considerable difference in their degrees of hazard, the commissioner may fix a rate for each subscriber of such group, such rate to be based upon the subscriber's record on the books of the commissioner for a period not to exceed three years ending the thirty-first day of December of the year preceding the year in which the rate is to be effective; and the liability part of such record shall include such cases as have been acted upon by the commissioner during such three-year period, irrespective of the date the injury was received; and any subscriber in a group so rated, whose record for such period cannot be obtained, shall be given a rate based upon the subscriber's record for any part of such period as may be deemed just and equitable by the commissioner; and the commissioner shall have authority to fix a reasonable minimum and maximum for any group to which this individual method of rating is applied, and to add to the rate determined from the subscriber's record such amount as is necessary to liquidate any deficit in the schedule as to create a reasonable surplus.

        It shall be the duty of the commissioner, when the commissioner changes any rate, to notify every employer affected thereby of that fact and of the new rate and when the same takes effect. It shall also be the commissioner's duty to furnish each employer yearly, or more often if requested by the employer, a statement giving the name of each of the employer's employees who were paid for injury and the amounts so paid during the period covered by the statement.

1993 W. Va. Acts Reg. Sess. ch. 171.

    The full text of West Virginia Code § 24-2-4, as amended and re-enacted in 1995, is as follows:

    § 23-2-4. Classification of industries; rate of premiums; authority to adopt various systems; accounts.

        (a) The commissioner, in conjunction with the compensation programs performance council, is authorized to establish by rule a system for determining the classification and distribution into classes of employers subject to this chapter, a system for determining rates of premium taxes applicable to employers subject to this chapter, a system of multiple policy options with criteria for subscription thereto, and criteria for an annual employer's statement providing both benefits liability information and rate determination information.
        (1) In addition, the rule shall provide for, but not be limited to:
        (A) Rate adjustments by industry or individual employer, including merit rate adjustments;
        (B) Notification regarding rate adjustments prior to the quarter in which the rate adjustments will be in effect;
        (C) Chargeability of claims; and
        (D) Such further matters that are necessary and consistent with the goals of this chapter;
        (2) The rule shall be consistent with the duty of the commissioner and the compensation programs performance council to fix and maintain the lowest possible rates of premium taxes consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in such fund and in keeping with their fiduciary obligations to the fund;
        (3) The rule shall be consistent with generally accepted accounting principles;
        (4) The rule shall be consistent with classification and rate-making methodologies found in the insurance industry; and
        (5) The rule shall be consistent with the principles of promoting more effective workplace health and safety programs as contained in article two-b [§§ 23-2B-1 et seq.] of this chapter.
        (b) Notwithstanding any other provision of this chapter to the contrary, the compensation programs performance council may elect to premise its premium tax determination methodology on the aggregate number of hours worked by employees of the employer rather than upon the gross wages of the employer. Such an election may apply to all industrial classifications or to less than all. If this election is made, then in all instances in which this chapter refers to gross wage reports for the purpose of premium tax determination such references shall be taken to mean a report of the number of hours so worked.
        (c) The rule authorized by subsection (a) of this section shall be promulgated on or before the first day of July, one thousand nine hundred ninety-six. Until the rule is finally promulgated the prior provisions of this section as found in chapter one hundred seventy-one of the acts of the Legislature, one thousand nine hundred ninety-three, shall remain in effect.
        (d) In accordance with generally accepted accounting principles, the workers' compensation division shall keep an accurate accounting of all money or moneys earned, due, and received by the workers' compensation fund, and of the liability incurred and disbursements made against the same; and an accurate account of all money or moneys earned, due and received from each individual subscriber, and of the liability incurred and disbursements made against the same.

W. Va. Code § 23-2-4 (Repl.Vol. 2002).

    The major changes effected by the 1995 amendment of West Virginia Code § 23-2-4 may be separated into three categories. First, the power to fix premiums for workers' compensation coverage was vested in the Commissioner and the Performance Council, rather than in the Commissioner alone. Second, omitting several paragraphs of statutory direction for the establishment of such rates, the statute directed the Commissioner, in conjunction with the Performance Council, to establish by rule the system for determining premiums, a system of multiple policy options, and criteria for the annual employer's statement of benefit liability and rate determination information, all in accord with legislatively enumerated standards. Significantly, the rule-making power was vested in the Commissioner and Performance Council, free and clear of the usual requirements for legislative rule-making review prior to actual promulgation of the rule. Cf. W. Va. Code § 21A-3-7(c) to W. Va. Code §§ 29A-3-1 to 18. Third, the Legislature removed from its rate-making instructions the direction to fix rates sufficient for the “creation and maintenance of a reasonable surplus in each group after providing for the payment to maturity of all liability incurred by reason of injury or death to employees entitled to benefits under the provisions of this chapter” and inserted the rate- making instruction to fix rates sufficient to effect a “reduction of any deficit that may exist in such fund and in keeping with their fiduciary obligations to the fund . . . .” W. Va. Code §§ 23- 2-4 (1993), 23-2-4(a)(2) (1995).

    Prior to 1995 the Legislature directed and intended that premiums would be collected sufficient to provide for the payment “to maturity” of all obligations of the Fund, together with “a reasonable surplus” for each group of employers and employees established under the system, including a second injury reserve. However, in 1995 that specific language was deleted and the legislative direction and intention was altered to require, among other things, premiums calculated to permit a “reduction of any deficit that may exist” in the Fund, in apparent realization that the Fund then had not collected premiums sufficient to provide for the payment of liabilities “to maturity,” let alone sufficient to provide a reasonable surplus for each grouping developed under the system and a second injury reserve.   (See footnote 9)  Testimony before the hearing examiner suggested that a large part of the impetus for requiring the development of a plan to reduce the Fund's deficit was to improve the bond rating of the state.

    In response to the 1995 legislative directives, the Commissioner and Performance Council drafted a proposed rule and proceeded to hold the necessary public hearings. In due course, the “Risk Management Rule” (hereinafter “Rule 9”) was promulgated. See 85 W. Va. C.S.R. 9. This rule retains the concept of a surplus fund and defines it to include that portion of the workers' compensation fund set aside to cover “the catastrophe hazard, the second injury hazard, deficit reduction, and all other losses not otherwise specifically provided for by the Act.” Id. at § 3.31 (emphasis supplied). In section 7 of Rule 9, the Performance Council is vested with authority to make a series of determinations consistent with its statutory duty “to fix and maintain the lowest possible rates of premium taxes consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in such fund. . . .” Id. at § 7.2 (emphasis supplied). The Performance Council is also authorized to include claims costs in “the methodology . . . [it employs] to assess deficit reduction costs, and such other costs pertinent to the determination of required revenues.” Id. Further, the Performance Council is specifically authorized to “[d]etermine the amount of premium tax which is assessed to reduce any deficit that may exist in the workers' compensation fund.” Id.

    After promulgation of Rule 9, the Commissioner and the Performance Council proceeded with the process for the adoption of workers' compensation premiums for FY 1998. Following public hearings at which some adverse comments were received, most notably from self-insured employers, an additional hearing was held for further comment on the proposed FY 1998 premium tax rates. Finally, on May 23, 1997, the Performance Council adopted Resolution No. 11 in which it is essentially stated that the Performance Council approved the FY 1998 premium tax rates as recommended by then Commissioner William F. Viewig.

    A feature of Resolution No. 11 adopted by the Performance Council, which is at the heart of the controversy in the appeals before us, is the requirement that employers pay premiums increased in an amount dedicated to the “[a]mortization of [d]iscount.” The term “amortization of discount” is, for purposes of this appeal, the amount directed by the Commissioner and Performance Council to be included in the FY 1998 workers' compensation premium tax rates for each employer in the state for the purpose of effecting a perceived “reduction of deficit” in the workers' compensation fund.   (See footnote 10)  As the actuary for the workers' compensation fund testified:

    The amortization of the discount represents the amount of investment income that would have been earned on the stated liabilities at the beginning of the period, based on the assumed interest rate. . . . [A]ssuming the Division collects enough money for prospective coverage, [it] is the amount of money that has to be collected to stop the deficit from increasing just by the missing interest on the discounted liabilities.

The amortization of discount was first allocated between regular subscribers as a class and self-insureds as a class. See note 41 for a more detailed explanation. The allocation of the self-insured employer share of the amortization of discount among specific self-insured employers involved a further two-step process. The first step was based upon the number of second injury claims each self-insured employer had in a three-year period; the second step divided among active self-insured employers a share of the claims incurred by inactive self- insured employers.

    Upon receipt of the Commissioner's notification of the proposed FY 1998 premium tax rates, including a calculated allocation of the “amortization of discount,” Appellants   (See footnote 11)  each timely protested the allocation of their share of the “amortization of discount” premium. Their initial protest was filed with the Commissioner as required by statute. See W. Va. Code § 23-2-17. The appeals were consolidated, and after hearings before a hearing examiner, the Commissioner by order dated November 30, 2000, upheld the premiums charged each of the Appellants. Appellants sought judicial review of this order in the Circuit Court of Kanawha County.   (See footnote 12)  The circuit court in its final order of January 17, 2002, upheld the Commissioner's decision; through this appeal Appellants seek a reversal of the lower court's order.

    The record further reflects that it has not been until rather recently that efforts have been made to actuarially compute the value of awards made at a given point in time with regard to the liability for future payments. The record discloses that the actuarially indicated estimate of the total of future payments due on all open claims at the time the FY 1998 rates were being determined was calculated at $6 billion and the actuarially determined present value of that sum is approximated at $2.2 billion, considerably less than the assets maintained in the Fund over a number of years. We further understand from the record that the dollar amount of the amortization of the discount is roughly $3.8 billion, which is the difference between the actuarially determined undiscounted sum of $6 billion and the discounted or present value sum of $2.2 billion. Through the FY 1998 premium tax assessments, the Commissioner and Performance Council proposed to recoup the first annual installment   (See footnote 14)  of this sum.   (See footnote 15) 

    Against this historical backdrop, we recognize that the fundamental issue raised through this appeal is whether Appellants and others similarly situated, be they self-insured employers as to all workers' compensation risks or not, may be required to contribute to the reduction of this actuarially determined deficit in the workers' compensation fund in the manner devised by the Legislature through its 1995 amendment and reenactment of West Virginia Code § 23-2-4, and by the Commissioner and the Performance Council both in their promulgation of Rule 9 and adoption of Resolution No. 11. In resolving this issue, we address the various arguments raised by the parties to this appeal.

    The most serious shortcoming in Appellants' argument concerning accounting principles and insurance standards is its overemphasis on the subsidiary processes rather than the primary goal of the rate-making statute. Appellants insist that the legislative requirements placed on the Performance Council and Commissioner to employ GAAP, as well as insurance industry and actuarial standards, operate to prohibit collection of any portion of the amortization of discount from self-insured employers. In light of the contrasting deficit reduction language, that reading of West Virginia Code § 23-2-4 suggests an ambiguity as to its meaning, causing us to construe the statute before it can be applied. Syl. pt. 1, Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992). In so doing, we are mindful that “[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature.” Syl. Pt. 1, Smith v. State Workmen's Comp. Com'r, 159 W. Va. 108, 219 S.E.2d 361 (1975). “'In ascertaining legislative intent, effect must be given to each part of the statute and to the statute as a whole so as to accomplish the general purpose of the legislation.' Syl. Pt. 2, Smith v. State Workmen's Compensation Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).” State ex rel. Morgan v. Trent, 195 W. Va. 257, 263, 465 S.E.2d 257, 263 (1995) (quoting State ex rel. Fetters v. Hott, 173 W. Va. 502, 318 S.E.2d 446 (1984).

    A central feature of the 1995 amendment to West Virginia Code § 23-2-4(a)(2) is the Legislature's express direction to the Commissioner and Performance Council to develop a rule which is aimed at establishing rates “consistent with the maintenance of a solvent workers' compensation fund and the reduction of any deficit that may exist in such fund. . . .” As noted earlier, the reduction of deficit language replaced language of previous enactments which required that a surplus fund be established and maintained. Surely we would be reaching an absurd result if we found that, by structuring the rule making and rate-making process around strict adherence to business and accounting principles, the Legislature intended that its own directive to correct “any deficit” be defeated. As we have long held, “[w]here a particular construction of a statute would result in an absurdity, some other reasonable construction, which will not produce such absurdity, will be made.” Syl. pt. 2, Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938). This Court is required to attempt to give meaning to all of the words in a statute and not to excise or negate any language if seemingly inconsistent language can be reconciled. Syl. pt. 7, Ex parte Watson, 82 W. Va. 201, 95 S.E. 648 (1918). In the circumstances before us, we are satisfied that the Legislature, by its amendment and reenactment of West Virginia Code § 23-2-4 in 1995, intended sound actuarial, insurance industry standards and business practices be employed in the determination of workers' compensation premium rates, but clearly did not intend that language to negate the Legislature's efforts to reduce any deficit in the workers' compensation fund. Our conclusion is further influenced by the Legislature's seeming acquiescence to the rate-making methodology used in 1998, since further legislative amendment has not been made to these rate-making directives or the broad grant of rule-making power to the Performance Council after the methodology was employed. See Appalachian Power Co. v. State Tax Dept., 195 W. Va. 573, 593, 466 S.E.2d 424, 444 (1995).

    Finally, we are satisfied that the record before us established that the Performance Council and Commissioner conformed to the legislative directives to employ appropriate business and actuarial standards in their rate-making processes. It has not been until recent times that actuarial standards and GAAP have been introduced into this state's workers' compensation rate-making process, as evidenced by the annual reports of the Division in fiscal years 1989 and 1990. In the FY 1998 rate-making process, we note specifically the extensive recourse to actuarial considerations and the reliance by the Performance Council and Commissioner on the results of the micro insurance reserve analysis process. From the record before us, we simply cannot say that the processes utilized failed to take into account all legislatively prescribed standards expressed in the 1995 amendments to the Act for the formulation of the rule or its application to the rate-making process.

    Our observations are made in full recognition of the fact that actuarial standards may yield higher or lower estimates of future obligations and so-called unfunded liabilities, depending upon the assumptions underlying the estimates. These assumptions include such variables as future returns on investments, valuation methods for investments, length of life awards, fluctuations in the average annual wage in West Virginia and other analogous factors. In the case before us, the parties did not challenge the assumptions and actuarial conclusions underpinning the calculation of the amortization of the discount. Consequently, we accept those calculations in the instant case as reasonably accurate for the purposes for which they were utilized.

    More enlightening points are raised by Appellants regarding seemingly conflicting provisions of the Act. Appellants contend that separate sections of the Act preclude self-insured employers from being assessed amortization of discount charges as part of the deficit reduction plan because the Legislature (1) denoted the particular elements to be included in premium computations for self-insured employers,   (See footnote 17)  and (2) provided directly and indirectly that no other charges be levied against any self-insured employers with respect to second injuries.   (See footnote 18)  Appellants stress that their position is bolstered by the Legislature's failure to revise the Act, either in 1995 or to date, so as to unequivocally authorize or require participation of self-insured employers in the deficit reduction process.

    Appellants' contention that it is impermissible for the additional tax to be applied to self-insured employers because it allows the Division to recoup second injury life award payments is not supported by the record. While the financial problems of the Division necessarily include the second injury fund, the additional tax to amortize the discount is not directly correlated to second injury life awards. The need to amortize the discount does not arise solely by reason of historical conditions and causes that are attributable to current and former employers classified as self-insured, but also includes such conditions and causes involving employers who are not self-insured. The overarching reality is that the workers' compensation system is a comprehensive remedy for workplace injuries and diseases which permeates virtually every employment situation in the state and under which the workers' compensation fund is ultimately responsible for every claim and benefit provided under the law. Accordingly, the Fund carries every burden dropped or avoided by any under-assessed, non-paying, closed, failed or bankrupt employer, save the extent to which surety bonds of self- insured employers alleviate this burden. It is readily apparent that, given the ever-changing nature of the state's economy, much of the high-employment, high-wage industrial economy has ceased to exist, but the workers' compensation fund has not kept pace with those changes.

    Status as a self-insured employer is a privilege by which a qualifying employer is excused from payment of the full premium tax based upon the employer's representation that a sufficient bond is being posted to defray all future obligations of the Fund which result from that employer's activities. It is telling that the Legislature chose not to exclude self- insured employers from the directive that rates be fixed to maintain a solvent workers' compensation fund and to reduce any deficit in that Fund by specifying that the “system for determining rates of premium taxes [be] applicable to employers subject to this chapter.” W. Va. Code § 23-2-4(a) (emphasis added). It is reasonable to conclude that the Legislature thus intended that part of the cost associated with an employer maintaining the privilege to self- insure was inclusion of such employers in the deficit reduction plan. This conclusion is further supported by the evidence in this case which indicates that over a lengthy period of time self-insured employer security bond requirements have not been stringently enforced, resulting in expanded liability being placed on the Fund for these unsecured obligations.   (See footnote 25)  While the Legislature cannot at any point in time forecast which employers operating in the state may in the future be under-assessed, non-paying, closed, failed or bankrupt employers, it would be improper for this Court to attempt to curb the reasonable discretion of the Legislature to address the consequences of some employers inevitably falling into these classifications.

    The need to increase premium taxes has been influenced by numerous factors. As previously mentioned, under-assessed, non-paying, closed, failed or bankrupt employers contribute to the financial situation under discussion. The reduction or capping of premium rates which has occurred on occasion, presumably for the purpose of encouraging economic development or of fostering the continuation of existing businesses, also has exacerbated the financial problems of the system.   (See footnote 26)  The practice of capping premiums, which was used in determining the FY 1998 rates according to Resolution No. 11, not only has financial implications but also obviously diminishes the correlation between the premiums charged and the job-related injury experience of the employer. Benefits payable under particular court decisions may well not have been anticipated in fixing rates in particular years. Likewise, escalating health care costs, especially in recent years, may not have been anticipated in fixing rates at a level necessary to secure future benefit payments. Certainly, fluctuations in the valuation of assets and in rates of return on those assets are considerable factors. Although not exhaustive, the enumerated conditions are sufficient to demonstrate that many employers, subscribing or self-insured, may not have made any direct contribution to the Funds' financial woes. Despite that appearance, the record simply does not support the conclusion that self- insured employers must be excluded from the obligation to address the deficit. Whether by reason of artificially reduced or capped premiums, business closures, reduced bonding requirements or other causes, self-insured employers _ like other employers whose employees may have made little or no call on the resources of the Fund _ may reasonably be called upon to assist in the reduction of the deficit, represented in this case as the amortization of discount. The stark reality is that the future health of the Fund is at stake, posing a significant threat to the interests of all employers and employees in the state. We continue to recognize as we did in syllabus point three of Repass v. Workers' Compensation Division, 212 W. Va. 86, 569 S.E.2d 162 (2002), that:

        The ultimate responsibility for the fiscal health of the West Virginia Workers' Compensation system rests with the Legislature. Balancing the conflicting goals of minimizing premiums while providing full and fair compensation to injured workers is the exclusive province of our publicly elected legislators. . . .
As this Court aptly summarized in State ex rel. Blankenship v. Richardson, 196 W. Va. 726, 731, 474 S.E.2d 906, 911(1996):

    [T]his Court is not concerned with the legislative policy which motivated the enactment of . . . [the 1995 amendments to the workers' compensation act], nor do we “sit as a superlegislature, commissioned to pass upon the political, social, economic or scientific merits of statutes pertaining to proper subjects of legislation. It is the duty of the legislature to consider facts, establish policy, and embody that policy in legislation.” Boyd v. Merritt, 177 W. Va. 472, 474, 354 S.E.2d 106, 108 (1986).

    In our view, the imposition on all employers of additional premium taxes to amortize the discount does not represent a prohibited retroactive charge imposed upon self- insured or other employers subject to the Act. As we recognized over fifty years ago in Hereford v. Meek, 132 W. Va. 373, 52 S.E.2d 740 (1949):

    Though the Legislature, in enacting . . . [an] amendment may not have realized or foreseen the result of its action . . ., it is presumed to be familiar with “all existing law”. . . applicable to the subject matter . . . . If its exercise of . . . power cause[s] an undesirable result, the remedy lies with the Legislature, whose action has produced it, and not the courts. The question of dealing with the situation in a more satisfactory or desirable manner is a matter of policy which calls for legislative, not judicial, action.

Id. at 388, 52 S.E.2d at 748 (internal citation omitted).

    Having fully addressed the non-constitutional challenges involving the premium costs at issue, we now consider Appellants' arguments that the inclusion of the amortization of the discount factor amounts to an unlawful taking and is in violation of their substantive rights of due process.

    Appellants maintain that the challenged premium assessments are an impermissible taking in violation of both the federal and state constitutions. See U.S. Const. amend. V; W.Va. Const. art. III, § 9.   (See footnote 27)  According to Appellants, the Division's actions in charging them additional costs for the purpose of amortizing the discount constitute a regulatory “taking” without just compensation. See id. As support for this argument, Appellants rely primarily on the decisions reached by the United States Supreme Court in Eastern Enterprises v. Apfel, 524 U.S. 498 (1998) and the Fifth Circuit Court of Appeals in U.S. Fidelity & Guaranty Co. v. McKeithen, 226 F.3d 412 (5^th Cir. 2000). Neither Eastern Enterprises nor McKeithen, however, compel the conclusion that the additional premium costs at issue constitute an unconstitutional taking.

    In similar fashion, the Fourth Circuit Court of Appeals has recognized that “Eastern Enterprises does not stand for the legal proposition that the Eastern assignments under the Coal Act contravene the Takings Clause.”   (See footnote 32)  A.T. Massey Coal Co. v. Massanari, 305 F.3d 226, 237 n.17 (4^th Cir. 2002). Given the high court's lack of consensus, the Fourth Circuit resolved that it would “apply Eastern Enterprises only to coal operators that stand in a position substantially identical to that of Eastern.”   (See footnote 33)  Ibid.; accord Unity Real Estate, 178 F.3d at 659. To determine whether the A.T. Massey Coal operators were in a position “substantially identical” to that of the Eastern operators, the Fourth Circuit sought to identify those “factors that were critical to both the plurality and Justice Kennedy in their respective determinations” that requiring Eastern, as a former coal operator, to be responsible for funding health benefits for certain retired miners was unconstitutional. 305 F.3d at 237.

     In finding the allocation of retroactive responsibility   (See footnote 34)  for health benefits unconstitutional in Eastern Enterprises, both the plurality and Justice Kennedy placed significance on the fact that “[n]ot until 1974 . . . could lifetime medical benefits . . . have been viewed [by the affected coal miners] as promised.” 524 U.S. at 535; accord 524 U.S. at 550 (Kennedy, J., concurring in judgment, dissenting in part). Because Eastern had left the coal industry in 1965, it had never been a signatory to any national bituminous coal wage agreement that carried the implied promise of lifetime health benefits for miners. See 524 U.S. at 530-32; 524 U.S. at 550 (Kennedy, J., concurring in judgment, dissenting in part) (observing that expectation of lifetime health benefits “was created by promises and agreements made long after Eastern left the coal business”). Consequently, “Eastern could not have contemplated liability for the provision of lifetime benefits to the widows of deceased miners” before 1974, when it was no longer in the business of coal mining.   (See footnote 35)  524 U.S. at 531.

    Recognizing the substantial amount of Eastern's liability ($50-$100 million), the plurality in Eastern Enterprises, observed that “[t]he distance into the past the Act reaches back to impose a liability on Eastern and the magnitude of that liability raise substantial questions of fairness.” 524 U.S. at 534. Refraining from second guessing the wisdom of Congress' decision to enact the Coal Act, however, the plurality reasoned:

    That Congress sought a legislative remedy for what it perceived to be a grave problem in the funding of retired coal miners' health benefits is understandable; complex problems of that sort typically call for a legislative solution. When, however, that solution singles out certain employers to bear a burden that is substantial in amount, based on the employers' conduct far in the past, and unrelated to any commitment that the employers made or to any injury they caused, the governmental action implicates fundamental principles of fairness underlying the Takings Clause. Eastern cannot be forced to bear the expense of lifetime health benefits for miners based on its activities decades before those benefits were promised.

524 U.S. at 537 (emphasis supplied).

    Applying principles of substantive due process   (See footnote 36)  rather than the Takings Clause, Justice Kennedy similarly concluded that the retroactive reach of the Coal Act was unconstitutional. In contrast to economic legislation that is limited to a prospective application and which “carries with it the presumption of constitutionality,” Justice Kennedy remarked upon “our legal tradition's disfavor of retroactive economic legislation.” 524 U.S. at 547-48 (Kennedy, J., concurring in judgment, dissenting in part). Characterizing the Coal Act's imposition of liability on employers based on events that took place thirty-five years ago as “severe retroactive legislation” and noting that such legislation was of “unprecedented scope” in its reach, Justice Kennedy determined that the specific circumstances present in Eastern Enterprises   (See footnote 37)  were egregious and presented that “rare instance[] in which even such a permissive standard [deferential review accorded to substantive due process challenges of economic legislation] has been violated.” 524 U.S. at 549-550 (Kennedy, J., concurring in judgment, dissenting in part).

    Distilling its analysis of the factors common to both the plurality and Justice Kennedy's concurrence, the Fourth Circuit determined that, for purposes of applying the Eastern Enterprises decision, “a coal operator stands in a position 'substantially identical' to that of Eastern if it had no connection to the 1974 or subsequent NBCWAs [national bituminous coal wage agreements].” 305 F.3d at 237. While the Massey plaintiffs argued that since they never signed the 1974 or subsequent national bituminous coal wage agreements they were in the same position as Eastern, the Fourth Circuit disagreed, citing the “related persons” status of the Massey plaintiffs with respect to signatory coal operators under the Coal Act. Based upon the clear Congressional intention to treat “related persons” “as though . . .[each member of a controlled group of corporations] had employed every miner who worked for any member of the group,” the Fourth Circuit determined that the non-signatory status of the plaintiff Massey companies to either the 1974 or any subsequent national bituminous coal wage agreement did not prevent the application of the Coal Act provisions. Id. at 239. In finding that the Massey plaintiffs were not in a “substantially identical” situation to that presented in Eastern Enterprises, the Fourth Circuit noted that, just as the United States Supreme Court recognized its obligation to defer to the Congressional statutory definitions in Eastern Enterprises,   (See footnote 38)  it was similarly required to rely on Congress' decision to designate “'related persons' as a single legal entity under the Coal Act.” Id. at 240.

    In analyzing the economic impact of the challenged legislation, the Fifth Circuit explained that the legislation “impose[d] a considerable, novel financial burden on the plaintiffs.” 226 F.3d at 416. Prior to the legislation's enactment, “insurers paid a net amount of zero for claims made on the Second Injury Fund and collected SIF premiums from their insureds only to pass-through the SIF assessments.” Id. at 416-17. Under the provisions of the challenged act, insurers were assessed charges “based on benefits paid under insurance policies written before the law's effective date.” 226 F.3d at 417. The Court in McKeithen noted that the plaintiff insurers who were no longer in the business of providing such insurance benefits, as contrasted to active insurers, had “no means to recoup the charge” and characterized the $50 million in retroactively assessed costs as “substantial.” Ibid. Of further importance to the Fifth Circuit in evaluating the economic impact of the Louisiana legislation was the fact that the “newly-created liability reflect[ed] no proportionality to the plaintiffs' experience with the SIF.” Ibid. In marked contrast to serving as a payment intermediary for twenty years, receiving no net benefits and incurring no net costs, the plaintiff insurers were now required under the challenged act to make “significant net contributions to the fund.” Ibid.

    Focusing on the retroactive reach of the costs assessed to the insurers _ a reach of twenty years _ the Fifth Circuit quickly determined that the cost-neutrality basis of the prior funding scheme had been dismantled. The Court in McKeithen then examined whether the plaintiff insurers could have foreseen either an alteration in the premium-based assessments or the retroactive imposition of a benefits-based method of assessing premiums. 226 F.3d at 418. The Court opined:

    While plaintiffs might have been on notice that there could be a change away from premium-based assessments, there was no evidence that the plaintiffs should have suspected abandonment of cost-neutrality. There was no evidence that the cost of financing the SIF was ever intended to be borne by insurers, that there existed any rationale or policy for imposing the cost on insurers, or that the state was contemplating shifting the burden of funding onto insurers.

Ibid. (footnote omitted). On the issue of whether the plaintiff insurers had sufficient notice of the challenged legislation, the court observed in McKeithen: “There are no indications in the law itself, in the legislative history, or in the record of this case that the SIF was financially insecure, or that employers were having trouble bearing the costs of operating the SIF.” 226 F.3d at 419.

    Rejecting the district court's analysis that the questioned legislation was merely “'a rational attempt by the state to impose the costs inherent in a certain type of business activity on those that have profited from the fruits of the business in question,'” the Fifth Circuit explained that the plaintiff insurers, as contrasted to the employers, did not benefit from the prior second injury funding scheme. Ibid. Describing the nature of the government action at issue as “unusual,” in that the Legislature failed to “identify[] a compelling problem, such as the financial insecurity of the SIF,” the Fifth Circuit determined that the challenged legislation had “'single[d] out certain [parties] to bear a burden that is substantial in amount, based on the [parties'] conduct far in the past, and unrelated to any commitment that the [parties] made or to any injury they caused. . . .'” Ibid. (quoting Eastern Enterprises, 524 U.S. at 537).          

    In concluding that the Louisiana statute constituted a taking, the Fifth Circuit reasoned:

        Act 188 as applied to plaintiffs' pre-enactment contracts retroactively imposes a heavy economic burden on those who could not reasonably anticipate the liability. The extent of the liability is disproportionate to the plaintiffs' experience with the SIF, and the legislation is unnecessary to substantially advance a legitimate state interest.

226 F.3d at 420 (emphasis supplied).              

    As an initial matter, we observe that both Eastern Enterprises and McKeithen involved premium assessments with a severe retroactive reach. In the former case it was thirty- five to fifty years and in the latter it was twenty years. As we explained above in refuting Appellant's contention that the additional component of the premium tax is a retroactive cost, the portion of the premium reflecting the amortization of the discount is a current cost deemed necessary to keep the fund afloat, rather than an assessment solely correlated to second injury life awards. Moreover, the mere fact that the quantity of an employer's second injury life awards is a component in the complex formula devised to address the remedial issue of the funding deficit does not render the premium assessment formula unconstitutional. See, e.g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1975) (upholding imposition of retroactive cost-spreading scheme for black lung benefits legislation among employers who had profited from fruits of affected employees' labor against due process challenge); see also McKeithen, 226 F.3d at 419 (suggesting that financial insecurity of second injury fund or inability of employers to solely bear costs of fund would be relevant factors concerning issue of assessing retroactive premiums). Unlike the methodology employed to calculate premiums in Eastern Enterprises, where the assessment was directly and specifically tied to the employment of individuals several decades earlier, the premium assessment at issue here has no far reaching retroactive effect. Even assuming some retroactive effect of the premium assessment under consideration, retroactivity alone does not render a statute unconstitutional. See Unity Real Estate, 178 F.3d. at 671 (stating that “[w]here Congress acts reasonably to redress an injury caused or to enforce an expectation created by a party, it can do so retroactively”). And, because the premium assessment was calculated based in terms of reducing the Fund's deficit as a whole, rather than being directly correlated to the second injury fund, Appellants fail in their attempt to convince us that the costs under scrutiny qualify as severely retroactive under the reasoning of the plurality opinion in Eastern Enterprises and McKeithen.

    Another significant difference between Eastern Enterprises and McKeithen and this case, which we have already touched upon, arises from the concern that substantially all employers in this state, not just self-insured employers or subscribers to the second injury fund, are subject to the inclusion of the amortization of the discount factor in their premiums. What was critical to the plurality in Eastern Enterprises and the Fifth Circuit in McKeithen was the singling out of certain entities for cost assessments. See 524 U.S. at 537; 226 F.3d at 419. Had only self-insured employers been charged a premium which contained an amortization of the discount factor, serious issues of fairness would undoubtedly be raised. In contrast to the scenarios presented in Eastern Enterprises and McKeithen, the Performance Council did not single out any one type of employer in its distribution of premium costs. Appellants have simply not demonstrated that the premiums assessments of which they complain are disproportionate to their experience with the Fund.   (See footnote 41)  See Eastern Enterprises, 524 U.S. at 523 (recognizing that “party challenging governmental action as an unconstitutional taking bears a substantial burden”).

    Of importance to the plurality in Eastern Enterprises and the Fifth Circuit in McKeithen were the related issues of investment-backed expectations and forseeability. In Eastern Enterprises, the plurality focused on the fact that Eastern could not have contemplated the imposition of liability for lifetime health benefits for coal miners due to its departure from the coal mining business almost ten years prior to the time when such an industry wide agreement was reached. Similarly, in McKeithen the Fifth Circuit emphasized that the insurers, who had always operated solely as payment conduits, had no basis for anticipating a change in the funding formula that would have involved the assessment of premiums against them. The appellate court emphasized that “there was no pattern of conduct on the state's part that could have given the plaintiffs sufficient notice that cost-neutrality would end.” McKeithen, 226 F.3d at 419. In stark contrast to both of those cases, Appellants have been on notice beginning in 1993 when the workers' compensation statutes were rewritten and then in 1995 when the statutes were substantially rewritten, and arguably sooner,   (See footnote 42)  that the Fund was facing the possibility of serious financial infirmity. See Connolly v. Pension Benefit Guar. Corp., 475 U.S. 211, 226-27 (1986) (upholding retroactive legislation based on fact that employers were continuously aware during entire period of retroactivity that Congress was studying funding mechanism for multiemployer pension plans and that statutory withdrawal liability might be required). Consequently, Appellants cannot seriously posit that an increase in premiums that would force them to bear some of the financial burden of keeping the Fund afloat was not foreseeable.

    As opposed to the findings by the plurality in Eastern Enterprises and the court in McKeithen, the nature of the government action at issue in this case is not “unusual.” See 524 U.S. at 537; 226 F.3d at 419. Unlike the concerns raised by the plurality in Eastern Enterprises that Congress had “single[d] out certain employers to bear a burden that is substantial in amount, based on the employers' conduct far in the past, and unrelated to any commitment that the employers made or to any injury they caused,” the government action at issue here is prototypical in that the Legislature, through the efforts of the Performance Council, took action in response to the compelling state interest of keeping the Fund afloat and the related interest of preventing a lowering of the state's bond ratings. 524 U.S. at 537. There can be no question that the financial insecurity of the Fund _ a compelling state interest _ is the driving force behind implementing, as part of the premium costs, an amortization of the discount factor. In clear contrast to the lack of commitment by the employers in Eastern Enterprises and the insurers in McKeithen, Appellants made an implicit commitment to their employees to pay all fairly and reasonably assessed premiums as a means of enabling their employees to receive the benefits to which they are entitled under the workers' compensation statutes.   (See footnote 43)  And, as discussed above, Appellants are unable to succeed on a disproportionality argument, as they, along with other non-excluded employers, were assessed premium increases that included the amortization of the discount factor.   (See footnote 44) 

    Further evidence of the fact that Appellants do not stand in shoes comparable to the plaintiffs in either Eastern Enterprises or McKeithen is shown by their collective inability to demonstrate that: (a) they could not have reasonably anticipated an increase in premium costs due to the well-known financial situation of the fund; (b) their assessment is disproportional to their experience with the Fund; and (c) that the legislative action taken in implementing the costs at issue was “unnecessary to substantially advance a legitimate state interest.” McKeithen, 226 F.3d at 420 (citing Eastern Enterprises, 524 U.S. at 528-29). Upon careful and thorough review of the applicable authority, we find that the formula developed by the Performance Council which allocates an amount for the amortization of the discount in assessing the workers' compensation premium tax for self-insured employers does not constitute an undue taking without compensation in violation of either the federal or state constitution.

    Challenges to economic legislation based on substantive due process are examined under a deferential standard of review. Concrete Pipe & Products v. Constr. Laborers Pension Trust, 508 U.S. 602, 639 (1993) (citing Usery, 428 U.S. at 19). Understandably, the high level of deference that is accorded to legislative actions aimed at addressing economic problems results from a recognition that lawmakers are uniquely charged with responsibility for passing laws designed to cure such serious social concerns. Consequently, courts are unwilling, as a rule, to second guess the wisdom of cost-spreading mechanisms adopted in connection with a particular legislative act, provided that such legislation can be viewed as a rational means of addressing the economic problem at issue. See Usery, 428 U.S. at 19 (“It is enough to say that the Act approaches the problem of cost spreading rationally; whether a broader cost-spreading scheme would have been wiser or more practical under the circumstances is not a question of constitutional dimension.”).

    The decision of the Performance Council, operating under recognized principles of legislative power delegation,   (See footnote 45)  to spread the costs of amortizing the discount between all employers is a determination which is similarly entitled to deference. See Usery, 428 U.S. at 18 (stating that “it is for Congress to choose between imposing the burden of inactive miners' disabilities on all operators, including new entrants and farsighted early operators who might have taken steps to minimize black lung dangers, or to impose that liability solely on those early operators whose profits may have been increased at the expense of their employees' health”). In repeatedly remonstrating their lack of responsibility for the financial condition of the Fund, what Appellants overlook is the collective responsibility of self-insured employers as a class for unpaid benefits and their concomitant interest and role in preventing the insolvency of the Fund. Moreover, the critical issue is whether the methodology chosen for assessing the additional premiums costs at issue here is a rational means of addressing the Fund's plight, and not identifying who caused the problem.

    In upholding the payment of health benefits under the Coal Act against due process challenges raised by employers who had been signatories to coal agreements in 1978 but who had been out of the industry for eleven years, the Third Circuit declared that “[e]ssentially, the Act is Congress's attempt to do equity.” Unity Real Estate, 178 F.3d at 673. As with any piece of economic legislation that seeks in a comprehensive fashion to address a serious financial obligation, there will always be challenges predicated on fairness. Given the entitlement of deference accorded to such legislation, however, we can only set aside the premium funding mechanism at issue here if we conclude that the adopted funding structure was arbitrary and irrational. It is clear to this Court that the methodology employed to calculate the amortization of the discount factor involved a detailed effort to identify all relevant factors that contributed to the Fund's financial situation. That process, which was grounded in recognized insurance principles and correlated to the experience of the various differing types of employers with the Fund, appears reasonable. While we cannot make this declaration with the preciseness of a mathematical formula, our reviewing obligation does not require such exactness: “[U]nder the deferential standard of review applied in substantive due process challenges to economic legislation there is no need for mathematical precision in the fit between justification and means.” Concrete Pipe, 508 U.S. at 639.

    Based on our opinion that the Performance Council was clearly charged with responsibility for setting premium rates that included costs necessary to maintain a solvent workers' compensation fund and to reduce the deficit, we cannot conclude that the mechanism by which the Performance Council opted to address the serious and well-known financial situation of the Fund was either arbitrary or irrational. See W.Va. Code § 23-2-4(a)(2). Like Congress's actions in enacting the Coal Act, the Performance Council was simply “attempt[ing] to do equity.” Unity Real Estate, 178 F.3d at 673. And, as the United States Supreme Court observed in Usery, the issue of whether a cost-spreading mechanism other than the one legislatively chosen “would have been wiser or more practical under the circumstances is not a question of constitutional dimension.” Usery, 428 U.S. at 19. Consequently, we determine that the formula developed by the Performance Council which allocates an amount for the amortization of the discount in assessing the workers' compensation premium tax for self- insured employers does not violate the Due Process clause of either the federal or state constitution.

    Finding no merit in the arguments raised by Appellants, we affirm the January 17, 2002, final order of the Circuit Court of Kanawha County and deny all relief requested. Specifically, we decline to enter the requested order to compel the Commissioner to meet fiduciary obligations of the Act, past or present, deferring in the circumstances to the current efforts of the executive and legislative branches to address such workers' compensation issues in plenary fashion. In consideration of the compelling circumstances, we hereby direct the entry of the necessary order and the issuance forthwith of the mandate pertaining to this decision.

Effective Date         Rate (brackets denote decrease)

7-1-85             [30%]
1986 through 1988        No change
1-1-89            30%
7-1-90            19%
7-1-91            15%
7-1-92            3%
7-1-93            7%
7-1-94            No change
7-1-95            12.2%

98 W. Va. L.Rev. 23, 85 n. 199 (1995).