Senate Bill No. 48
(By Senator White)
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[Introduced January 13, 2010; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact §23-4-6 of the Code of West Virginia,
1931, as amended, relating to workers' compensation benefits;
and extending permanent total disability benefits to claimants
for life.
Be it enacted by the Legislature of West Virginia:
That §23-4-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions of
this chapter for personal injury, the compensation shall be as
provided in the following schedule:
(a) The terms "average weekly wage earnings, wherever earned,
of the injured employee, at the date of injury" and "average weekly
wage in West Virginia", as used in this chapter, have the meaning and shall be computed as set forth in section fourteen of this
article except for the purpose of computing temporary total
disability benefits for part-time employees pursuant to the
provisions of section six-d of this article.
(b) For all awards made on and after the effective date of the
amendment and reenactment of this section during the year 2003, if
the injury causes temporary total disability, the employee shall
receive during the continuance of the disability a maximum weekly
benefit to be computed on the basis of sixty-six and two-thirds
percent of the average weekly wage earnings, wherever earned, of
the injured employee, at the date of injury, not to exceed one
hundred percent of the average weekly wage in West Virginia:
Provided, That in no event shall an award for temporary total
disability be subject to annual adjustments resulting from changes
in the average weekly wage in West Virginia:
Provided, however,
That in the case of a claimant whose award was granted prior to the
effective date of the amendment and reenactment of this section
during the year 2003, the maximum benefit rate shall be the rate
applied under the prior enactment of this subsection which was in
effect at the time the injury occurred. The minimum weekly
benefits paid under this subdivision shall not be less than
thirty-three and one-third percent of the average weekly wage in
West Virginia, except as provided in sections six-d and nine of
this article. In no event, however, shall the minimum weekly benefits exceed the level of benefits determined by use of the
applicable federal minimum hourly wage:
Provided further, That any
claimant receiving permanent total disability benefits, permanent
partial disability benefits or dependents' benefits prior to July
1, 1994, shall not have his or her benefits reduced based upon the
requirement in this subdivision that the minimum weekly benefit
shall not exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section is limited as follows:
Aggregate award for a single injury causing temporary disability
shall be for a period not exceeding two hundred eight weeks;
aggregate award for a single injury for which an award of temporary
total disability benefits is made on or after the effective date of
the amendment and reenactment of this section in the year 2003
shall be for a period not exceeding one hundred four weeks.
Notwithstanding any other provision of this subdivision to the
contrary, no person may receive temporary total disability benefits
under an award for a single injury for a period exceeding one
hundred four weeks from the effective date of the amendment and
reenactment of this section in the year 2003.
(d) For all awards of permanent total disability benefits that
are made on or after February 2, 1995, including those claims in
which a request for an award was pending before the division or
which were in litigation but not yet submitted for a decision, then
benefits shall be payable
until during the lifetime of the claimant.
attains the age necessary to receive federal old age
retirement benefits under the provisions of the Social Security
Act, 42 U.S.C. §§401 and 402, in effect on the effective date of
this section The claimant shall be paid benefits so as not to
exceed a maximum benefit of sixty-six and two-thirds percent of the
claimant's average weekly wage earnings, wherever earned, at the
time of the date of injury not to exceed one hundred percent of the
average weekly wage in West Virginia. The minimum weekly benefits
paid under this section shall be as is provided for in subdivision
(b) of this section. In all claims in which an award for permanent
total disability benefits was made prior to February 2, 1995, the
awards shall continue to be paid at the rate in effect prior to the
effective date of the amendment and reenactment of this section in
the year 2003:
Provided, That the provisions of sections one
through eight, inclusive, article four-a of this chapter shall be
applied thereafter to all prior awards that were previously subject
to its provisions. A single or aggregate permanent disability of
eighty-five percent or more entitles the employee to a rebuttable
presumption of a permanent total disability for the purpose of
paragraph (2), subdivision (n) of this section:
Provided, however,
That the claimant must also be at least fifty percent medically
impaired upon a whole body basis or has sustained a thirty-five
percent statutory disability pursuant to the provisions of
subdivision (f) of this section. The presumption may be rebutted if the evidence establishes that the claimant is not permanently
and totally disabled pursuant to subdivision (n) of this section.
Under no circumstances may the commission, successor to the
commission, other private carrier or self-insured employer,
whichever is applicable, grant an additional permanent disability
award to a claimant receiving a permanent total disability award:
Provided further, That if any claimant thereafter sustains another
compensable injury and has permanent partial disability resulting
from the injury, the total permanent disability award benefit rate
shall be computed at the highest benefit rate justified by any of
the compensable injuries.
(e) (1) For all awards made on or after the effective date of
the amendment and reenactment of this section during the year 2003,
if the injury causes permanent disability less than permanent total
disability, the percentage of disability to total disability shall
be determined and the award computed on the basis of four weeks'
compensation for each percent of disability determined at the
maximum or minimum benefit rates as follows: Sixty-six and
two-thirds percent of the average weekly wage earnings, wherever
earned, of the injured employee at the date of injury, not to
exceed seventy percent of the average weekly wage in West Virginia:
Provided, That in no event shall an award for permanent partial
disability be subject to annual adjustments resulting from changes
in the average weekly wage in West Virginia:
Provided, however, That in the case of a claimant whose award was granted prior to the
effective date of the amendment and reenactment of this section
during the year 2003, the maximum benefit rate shall be the rate
applied under the prior enactment of this section which was in
effect at the time the injury occurred.
(2) If a claimant is released by his or her treating physician
to return to work at the job he or she held before the occupational
injury occurred and if the claimant's preinjury employer does not
offer the preinjury job or a comparable job to the employee when a
position is available to be offered, the award for the percentage
of partial disability shall be computed on the basis of six weeks
of compensation for each percent of disability.
(3) The minimum weekly benefit under this subdivision shall be
as provided in subdivision (b) of this section for temporary total
disability.
(f) If the injury results in the total loss by severance of
any of the members named in this subdivision, the percentage of
disability shall be determined by the percentage of disability,
specified in the following table:
The loss of a great toe shall be considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be considered a
five percent disability.
The loss of other toes shall be considered a four percent disability.
The loss of other toes (one phalanx) shall be considered a two
percent disability.
The loss of all toes shall be considered a twenty-five percent
disability.
The loss of forepart of foot shall be considered a thirty
percent disability.
The loss of a foot shall be considered a thirty-five percent
disability.
The loss of a leg shall be considered a forty-five percent
disability.
The loss of thigh shall be considered a fifty percent
disability.
The loss of thigh at hip joint shall be considered a sixty
percent disability.
The loss of a little or fourth finger (one phalanx) shall be
considered a three percent disability.
The loss of a little or fourth finger shall be considered a
five percent disability.
The loss of ring or third finger (one phalanx) shall be
considered a three percent disability.
The loss of ring or third finger shall be considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be considered a three percent disability.
The loss of middle or second finger shall be considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be
considered a six percent disability.
The loss of index or first finger shall be considered a ten
percent disability.
The loss of thumb (one phalanx) shall be considered a twelve
percent disability.
The loss of thumb shall be considered a twenty percent
disability.
The loss of thumb and index fingers shall be considered a
thirty-two percent disability.
The loss of index and middle fingers shall be considered a
twenty percent disability.
The loss of middle and ring fingers shall be considered a
fifteen percent disability.
The loss of ring and little fingers shall be considered a ten
percent disability.
The loss of thumb, index and middle fingers shall be
considered a forty percent disability.
The loss of index, middle and ring fingers shall be considered
a thirty percent disability.
The loss of middle, ring and little fingers shall be considered a twenty percent disability.
The loss of four fingers shall be considered a thirty-two
percent disability.
The loss of hand shall be considered a fifty percent
disability.
The loss of forearm shall be considered a fifty-five percent
disability.
The loss of arm shall be considered a sixty percent
disability.
The total and irrecoverable loss of the sight of one eye shall
be considered a thirty-three percent disability. For the partial
loss of vision in one or both eyes, the percentages of disability
shall be determined by the commission, using as a basis the total
loss of one eye.
The total and irrecoverable loss of the hearing of one ear
shall be considered a twenty-two and one-half percent disability.
The total and irrecoverable loss of hearing of both ears shall be
considered a fifty-five percent disability.
For the partial loss of hearing in one or both ears, the
percentage of disability shall be determined by the commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, using as a basis the total loss
of hearing in both ears.
If a claimant sustains a compensable injury which results in the total loss by severance of any of the bodily members named in
this subdivision or dies from sickness or noncompensable injury
before the commission makes the proper award for the injury, the
commission shall make the award to the claimant's dependents as
defined in this chapter, if any; the payment to be made in the same
installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse of
the claimant after his or her remarriage and that this liability
shall not accrue to the estate of the claimant and is not subject
to any debts of, or charges against, the estate.
(g) If a claimant to whom has been made a permanent partial
award dies from sickness or noncompensable injury, the unpaid
balance of the award shall be paid to claimant's dependents as
defined in this chapter, if any; the payment to be made in the same
installments that would have been paid to claimant if living:
Provided, That no payment shall be made to any surviving spouse of
the claimant after his or her remarriage, and that this liability
shall not accrue to the estate of the claimant and is not subject
to any debts of, or charges against, such estate.
(h) For the purposes of this chapter, a finding of the
Occupational Pneumoconiosis Board has the force and effect of an
award.
(i) For the purposes of this chapter, with the exception of
those injuries provided for in subdivision (f) of this section and in section six-b of this article, the degree of permanent
disability other than permanent total disability shall be
determined exclusively by the degree of whole body medical
impairment that a claimant has suffered. For those injuries
provided for in subdivision (f) of this section and section six-b
of this article, the degree of disability shall be determined
exclusively by the provisions of said subdivision and said section.
The Occupational Pneumoconiosis Board created pursuant to section
eight-a of this article shall premise its decisions on the degree
of pulmonary function impairment that claimants suffer solely upon
whole body medical impairment. The Workers' Compensation
Commission shall adopt standards for the evaluation of claimants
and the determination of a claimant's degree of whole body medical
impairment. Once the degree of medical impairment has been
determined, that degree of impairment shall be the degree of
permanent partial disability that shall be awarded to the claimant.
This subdivision is applicable to all injuries incurred and
diseases with a date of last exposure on or after February 2, 1995,
to all applications for an award of permanent partial disability
made on and after that date and to all applications for an award of
permanent partial disability that were pending before the
commission or pending in litigation but not yet submitted for
decision on and after that date. The prior provisions of this
subdivision remain in effect for all other claims.
(j) From a list of names of seven persons submitted to the
executive director by the health care advisory panel, the executive
director shall appoint an interdisciplinary examining board
consisting of five members to evaluate claimants, including by
examination if the board elects. The interdisciplinary examining
board shall terminate upon termination of the commission and all
administrative and adjudicatory functions performed by the
Interdisciplinary Examining Board shall be performed by the
following reviewing bodies for those claims over which they have
administrative jurisdiction: (1) The Insurance Commissioner or
his or her designated administrator of each of the funds set forth
in this chapter; (2) private carriers; or (3) self-insured
employers. The reviewing bodies shall employ or otherwise engage
adequate resources, including medical professionals, to perform the
functions of the Interdisciplinary Examining Board. The board
shall be composed of three qualified physicians with specialties
and expertise qualifying them to evaluate medical impairment and
two vocational rehabilitation specialists who are qualified to
evaluate the ability of a claimant to perform gainful employment
with or without retraining. One member of the board shall be
designated annually as chairperson by the executive director. The
term of office of each member of the board shall be six years and
until his or her successor has been appointed and has qualified.
Any member of the board may be appointed to any number of terms. Any two physician members and one vocational rehabilitation
specialist member shall constitute a quorum for the transaction of
business. The executive director, from time to time, shall fix the
compensation to be paid to each member of the board, and the
members are also entitled to reasonable and necessary traveling and
other expenses incurred while actually engaged in the performance
of their duties. The board shall perform the duties and
responsibilities assigned by the provisions of this chapter,
consistent with the administrative policies developed by the
executive director with the approval of the board of managers.
(1) The executive director shall establish requirements for
the proper completion and support for an application for permanent
total disability benefits within an existing or a new rule no later
than January 1, 2004. Upon adoption of the rule by the board of
managers, no issue of permanent total disability may be referred to
the Interdisciplinary Examining Board, or, any other reviewing
body, unless a properly completed and supported application for
permanent total disability benefits has been first filed. Prior to
the referral of any issue to the Interdisciplinary Examining Board,
or, upon its termination, prior to a reviewing body's adjudication
of a permanent total disability application, the commission, or
reviewing body shall conduct examinations of the claimant that it
finds necessary and obtain all pertinent records concerning the
claimant's medical history and reports of examinations and forward them to the board at the time of the referral. The commission or
reviewing body shall provide adequate notice to the employer of the
filing of the request for a permanent total disability award and
the employer shall be granted an appropriate period in which to
respond to the request. The claimant and the employer may furnish
all pertinent information to the board or other reviewing body and
shall furnish to the board or other reviewing body any information
requested. The claimant and the employer may each submit no more
than one report and opinion regarding each issue present in a given
claim. The employer may have the claimant examined by medical
specialists and vocational rehabilitation specialists:
Provided,
That the employer is entitled to only one examination on each issue
present in a given claim. Any additional examinations must be
approved by the commission or other reviewing body and shall be
granted only upon a showing of good cause. The reports from all
employer-conducted examinations must be filed with the board or
other reviewing body and served upon the claimant. The board or
other reviewing body may request that those persons who have
furnished reports and opinions regarding a claimant provide it with
additional information considered necessary. Both the claimant and
the employer, as well as the commission, or other reviewing body
may submit or obtain reports from experts challenging or supporting
the other reports in the record regardless of whether or not the
expert examined the claimant or relied solely upon the evidence of record.
(2) If the board or a quorum of the board elects to examine a
claimant, the individual members shall conduct any examinations
that are pertinent to each of their specialties. If a claim
presents an issue beyond the expertise of the board, the board may
obtain advice or evaluations by other specialists. In addition, if
the board of managers determines that the number of applications
pending before the Interdisciplinary Examining Board has exceeded
the level at which the board can review and make recommendations
within a reasonable time, the board of managers may authorize the
executive director to appoint any additional members to the board
that are necessary to reduce the backlog of applications. The
additional members shall be recommended by the health care advisory
panel. The executive director may make any appointments he or she
chooses from the recommendations. The additional board members
shall not serve a set term but shall serve until the board of
managers determines that the number of pending applications has
been reduced to an acceptable level.
(3) Referrals to the board shall be limited to matters related
to the determination of permanent total disability under the
provisions of subdivision (n) of this section and to questions
related to medical cost containment, utilization review decisions
and managed care decisions arising under section three of this
article.
(4) In the event the board members or other reviewing body
elects to examine a claimant, the board or other reviewing body
shall prepare a report stating the tests, examinations, procedures
and other observations that were made, the manner in which each was
conducted and the results of each. The report shall state the
findings made by the board or other reviewing body and the reasons
for the findings. Copies of the reports of all examinations made
by the board or other reviewing body shall be served upon the
parties and the commission until its termination. Each shall be
given an opportunity to respond in writing to the findings and
conclusions stated in the reports.
(5) The board or other reviewing body shall state its initial
recommendations to the commission in writing with an explanation
for each recommendation setting forth the reasons for each. The
recommendations shall be served upon the parties and the commission
and each shall be afforded a thirty-day opportunity to respond in
writing to the board or other reviewing body regarding its
recommendations. The board or other reviewing body shall review
any responses and issue its final recommendations. The final
recommendations shall be effectuated by the entry of an appropriate
order by the commission, or, upon its termination, the private
carrier or self-insured employer. For all awards for permanent
total disability where the claim was filed on or after the
effective date of the amendment and reenactment of this section in the year 2003, the commission or other reviewing body shall
establish the date of onset of the claimant's permanent total
disability as the date when a properly completed and supported
application for permanent total disability benefits as prescribed
in subdivision (1) of this subsection that results in a finding of
permanent total disability was filed with the commission or other
reviewing body:
Provided, That upon notification of the commission
or other reviewing body by a claimant or his or her representative
that the claimant seeks to be evaluated for permanent total
disability, the commission or other reviewing body shall send the
claimant or his or her representative the proper application form.
The commission or other reviewing body shall set time limits for
the return of the application. A properly completed and supported
application returned within the time limits set by the commission
or other reviewing body shall be treated as if received on the date
the commission or other reviewing body was notified the claimant
was seeking evaluation for permanent total disability:
Provided,
however, That notwithstanding any other provision of this section
to the contrary, the onset date may not be sooner than the date
upon which the claimant meets the percentage thresholds of prior
permanent partial disability that are established by subsection (n)
of this section as a prerequisite to the claimant's qualification
for consideration for a permanent total disability award.
(6) Except as noted below, objections pursuant to section one, article five of this chapter to any order shall be limited in scope
to matters within the record developed before the Workers'
Compensation Commission and the board or other reviewing body and
shall further be limited to the issue of whether the board or other
reviewing body properly applied the standards for determining
medical impairment, if applicable, and the issue of whether the
board's findings are clearly wrong in view of the reliable,
probative and substantial evidence on the whole record. The
preponderance of the evidence set forth in article one of this
chapter shall apply to decisions made by reviewing bodies other
than the commission instead of the clearly wrong standard. If
either party contends that the claimant's condition has changed
significantly since the review conducted by the board or other
reviewing body, the party may file a motion with the administrative
law judge, together with a report supporting that assertion. Upon
the filing of the motion, the administrative law judge shall cause
a copy of the report to be sent to the examining board or other
reviewing body asking the board to review the report and provide
comments if the board chooses within sixty days of the board's
receipt of the report. The board or other reviewing body may
either supply comments or, at the board's or other reviewing body's
discretion, request that the claim be remanded to the board for
further review. If remanded, the claimant is not required to
submit to further examination by the employer's medical specialists or vocational rehabilitation specialists. Following the remand,
the board or other reviewing body shall file its recommendations
with the administrative law judge for his or her review. If the
board or other reviewing body elects to respond with comments, the
comments shall be filed with the administrative law judge for his
or her review. Following the receipt of either the board's or
other reviewing body's recommendations or comments, the
administrative law judge shall issue a written decision ruling upon
the asserted change in the claimant's condition. No additional
evidence may be introduced during the review of the objection
before the office of judges or elsewhere on appeal:
Provided, That
each party and the commission may submit one written opinion on
each issue pertinent to a given claim based upon a review of the
evidence of record either challenging or defending the board's or
other reviewing body's findings and conclusions. Thereafter, based
upon the evidence of record, the administrative law judge shall
issue a written decision containing his or her findings of fact and
conclusions of law regarding each issue involved in the objection.
The limitation of the scope of review otherwise provided in this
subsection is not applicable upon termination of the commission and
any objections shall be subject to article five of this chapter in
its entirety.
(k) Compensation payable under any subdivision of this section
shall not exceed the maximum nor be less than the weekly benefits specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this chapter,
temporary total disability benefits payable under subdivision (b)
of this section shall not be deductible from permanent partial
disability awards payable under subdivision (e) or (f) of this
section. Compensation, either temporary total or permanent
partial, under this section shall be payable only to the injured
employee and the right to the compensation shall not vest in his or
her estate, except that any unpaid compensation which would have
been paid or payable to the employee up to the time of his or her
death, if he or she had lived, shall be paid to the dependents of
the injured employee if there are any dependents at the time of
death.
(m) The following permanent disabilities shall be conclusively
presumed to be total in character:
Loss of both eyes or the sight thereof.
Loss of both hands or the use thereof.
Loss of both feet or the use thereof.
Loss of one hand and one foot or the use thereof.
(n) (1) Other than for those injuries specified in subdivision
(m) of this section, in order to be eligible to apply for an award
of permanent total disability benefits for all injuries incurred
and all diseases, including occupational pneumoconiosis, regardless
of the date of last exposure, on and after the effective date of the amendment and reenactment of this section during the year 2003,
a claimant: (A) Must have been awarded the sum of fifty percent in
prior permanent partial disability awards; (B) must have suffered
a single occupational injury or disease which results in a finding
by the commission that the claimant has suffered a medical
impairment of fifty percent; or (C) has sustained a thirty-five
percent statutory disability pursuant to the provisions of
subdivision (f) of this section. Upon filing an application, the
claim will be reevaluated by the examining board or other reviewing
body pursuant to subdivision (i) of this section to determine if
the claimant has suffered a whole body medical impairment of fifty
percent or more resulting from either a single occupational injury
or occupational disease or a combination of occupational injuries
and occupational diseases or has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f)
of this section. A claimant whose prior permanent partial
disability awards total eighty-five percent or more shall also be
examined by the board or other reviewing body and must be found to
have suffered a whole body medical impairment of fifty percent in
order for his or her request to be eligible for further review.
The examining board or other reviewing body shall review the claim
as provided for in subdivision (j) of this section. If the
claimant has not suffered whole body medical impairment of at least
fifty percent or has sustained a thirty-five percent statutory disability pursuant to the provisions of subdivision (f) of this
section, the request shall be denied. Upon a finding that the
claimant has a fifty percent whole body medical impairment or has
sustained a thirty-five percent statutory disability pursuant to
the provisions of subdivision (f) of this section, the review of
the application continues as provided for in the following
paragraph of this subdivision. Those claimants whose prior
permanent partial disability awards total eighty-five percent or
more and who have been found to have a whole body medical
impairment of at least fifty percent or have sustained a
thirty-five percent statutory disability pursuant to the provisions
of subdivision (f) of this section are entitled to the rebuttable
presumption created pursuant to subdivision (d) of this section for
the remaining issues in the request.
(2) For all awards made on or after the effective date of the
amendment and reenactment of this section during the year 2003,
disability which renders the injured employee unable to engage in
substantial gainful activity requiring skills or abilities which
can be acquired or which are comparable to those of any gainful
activity in which he or she has previously engaged with some
regularity and over a substantial period of time shall be
considered in determining the issue of total disability. The
comparability of preinjury income to post-disability income will
not be a factor in determining permanent total disability. Geographic availability of gainful employment within a driving
distance of seventy-five miles from the residence of the employee
or within the distance from the residence of the employee to his or
her preinjury employment, whichever is greater, will be a factor in
determining permanent total disability. For any permanent total
disability award made after the amendment and reenactment of this
section in the year 2003, permanent total disability benefits shall
cease at age seventy years. In addition, the vocational standards
adopted pursuant to subsection (m), section seven, article three of
this chapter shall be considered once they are effective.
(3) In the event that a claimant, who has been found to have
at least a fifty percent whole body medical impairment or has
sustained a thirty-five percent statutory disability pursuant to
the provisions of subdivision (f) of this section, is denied an
award of permanent total disability benefits pursuant to this
subdivision and accepts and continues to work at a lesser paying
job than he or she previously held, the claimant is eligible,
notwithstanding the provisions of section nine of this article, to
receive temporary partial rehabilitation benefits for a period of
four years. The benefits shall be paid at the level necessary to
ensure the claimant's receipt of the following percentages of the
average weekly wage earnings of the claimant at the time of injury
calculated as provided in this section and sections six-d and
fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year:
Provided, That in no
event shall the benefits exceed one hundred percent of the average
weekly wage in West Virginia. In no event shall the benefits be
subject to the minimum benefit amounts required by the provisions
of subdivision (b) of this section.
(4) Notwithstanding any provision of this subsection,
subsection (d) of this section or any other provision of this code
to the contrary, on any claim filed on or after the effective date
of the amendment and reenactment of this section in the year 2003:
(A) No percent of whole body medical impairment existing as
the result of carpal tunnel syndrome for which a claim has been
made under this chapter may be included in the aggregation of
permanent disability under the provisions of this subsection or
subsection (d) of this section; and
(B) No percent of whole body medical impairment existing as
the result of any occupational disease, the diagnosis of which is
based solely upon symptoms rather than specific, objective and
measurable medical findings, and for which a claim has been made
under this chapter may be included in the aggregation of permanent
disability under the provisions of this subsection or subsection
(d) of this section.
(o) To confirm the ongoing permanent total disability status
of the claimant, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may elect to have any recipient of a permanent total disability
award undergo one independent medical examination during each of
the first five years that the permanent total disability award is
paid and one independent medical examination during each three-year
period
thereafter until the claimant reaches the age of seventy
years during the lifetime of the claimant: Provided, That the
commission, successor to the commission, other private carrier or
self-insured employer, whichever is applicable, may elect to have
any recipient of a permanent total disability award under the age
of fifty years undergo one independent medical examination during
each year that the permanent total disability award is paid until
the recipient reaches the age of fifty years, and thereafter one
independent medical examination during each three-year period
thereafter
until the claimant reaches the age of seventy years
during the lifetime of the claimant.
NOTE: The purpose of this bill is to extend permanent total
disability benefits to claimants for life.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.