H. B. 2345
(By Delegates Jenkins, Frederick, Ball,
Ashley, Trump and Johnson)
[Introduced February 2, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section thirteen, article one,
chapter twenty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to amend and
reenact sections six, six-c, nine, ten and sixteen, article
four of said chapter; to amend and reenact section one-f,
article five of said chapter; and to further amend said
article by adding thereto a new section, designated section
six-e, all relating to workers' compensation; relating to
rules of procedure and evidence, persons authorized to
appear in proceedings, and psychiatric and psychological
reports and summaries thereof; relating to weighing the
evidence and factors to be considered in evaluating evidence; relating to certain factors that do not have to be
proved; relating to a limited rule of liberal construction
and burden of proof; relating to the classification of and
criteria for disability benefits; defining terms; relating
to temporary total disability and the rate of benefits for
such disability; providing limitations; relating to
permanent total disability and the rate of benefits for such
disability; providing certain presumptions with respect to
permanent total disability; relating to permanent partial
disability benefits and the rate of benefits for such
disability; relating to minimum and maximum benefits;
specifying that maximum weekly benefits shall be limited by
sixty-six and two-thirds percent of the weekly wage earnings
rather than seventy percent; relating to scheduled
disabilities; relating to payment of benefits upon death of
claimant; providing that whole body impairment
determinations shall be translated into permanent partial
disability; relating to disabilities conclusively presumed
to be permanent total disabilities; providing a rule of
construction as to former subsection (n) of said section
six; relating to the benefits payable to the employees of certain nonprofit workshops; specifying that the weekly
benefits payable to any such employee shall not exceed
sixty-six and two-thirds percent of such employee's actual
weekly wage; establishing criteria for examination by the
interdisciplinary examining board; requiring an examination
by such examining board before certain permanent total
disability awards may be considered; providing for the
appointment of such examining board; relating to the
qualifications of the members of the examining board;
relating to the terms and compensation of the members of the
examining board and quorum of the examining board; relating
to the records to be obtained and furnished to the examining
board; relating to issues to be determined by the examining
board; authorizing the payment of moving and relocation
expenses to certain claimants; providing that social
security disability determinations shall not be relevant;
relating to the entry of orders following examinations and
reports by the examining board; relating to hearings;
relating to resignation from employment; barring reopenings
by relocated claimants; authorizing the payment of temporary partial rehabilitation benefits for four years; providing
certain limitations and conditions with respect to the
payment of such benefits; providing that the payment of
certain permanent total disability benefits shall terminate
upon the ceasing of active employment and the receipt of
old-age retirement benefits under the Social Security Act;
providing that payment of certain permanent total disability
benefits shall be deferred until litigation as to
entitlement has been finally resolved; relating to physical
and vocational rehabilitation and certain limitations with
respect thereto; changing the maximum temporary partial
rehabilitation benefit from seventy to sixty-six and
two-thirds percent of the two average weekly wage earnings;
relating to death benefits and the classification and amount
thereof; defining dependent; eliminating the lump sum
payment of one hundred four weeks of benefits to a dependent
of a person who was receiving permanent total disability
benefits but who dies from a cause other than a disabling
injury; relating to the reopening of claims for further
consideration and the limitations thereon; reducing the number of and times within which a claim may be reopened
except for claims for occupational diseases which are
progressive; relating to the effect of retirement upon
obtaining temporary total disability benefits; relating to
reopenings for medical benefits and limiting the time within
which such reopening applications may be filed; relating to
expenses in connection with a reopening; relating to
reopening for reevaluation of persons receiving permanent
total disability benefits under certain limitations and
restrictions; relating to attorneys' fees in connection with
certain reevaluations; relating to review of such decisions;
relating to compromises and settlements; providing
procedures with respect to compromise and settlement;
providing that a settlement which is final and binding
prevents all reopenings; relating to the payment of benefits
pursuant to a settlement agreement; and relating to the
setting aside of a settlement for fraud, undue influence or
coercion.
Be it enacted by the Legislature of West Virginia:
That section thirteen, article one, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one,
as amended, be amended and reenacted; that sections six, six-c,
nine, ten and sixteen, article four of said chapter be amended
and reenacted; that section one-f, article five of said chapter
be amended and reenacted; and to further amend said article by
adding thereto a new section, designated section six-e, all to
read as follows:
ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-13. Rules of procedure and evidence; persons authorized to
appear in proceedings; withholding of psychiatric
and psychological reports and providing summaries
thereof; weighing of evidence; liberality and
proof.
(a) The commissioner shall adopt reasonable and proper rules
of procedure, regulate and provide for the kind and character of
notices, and the service thereof, in cases of accident and injury
to employees, the nature and extent of the proofs and evidence,
the method of taking and furnishing the same to establish the
rights to benefits or compensation from the fund hereinafter
provided for, or directly from employers as hereinafter provided,
as the case may require, and the method of making investigations, physical examinations and inspections, and prescribe the time
within which adjudications and awards shall be made.
(b) At hearings and other proceedings before the
commissioner or before the duly authorized representative of the
commissioner, an employer who is a natural person may appear, and
a claimant may appear, only as follows:
(1) By an attorney duly licensed and admitted to the
practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0--admission pro hac vice,
West Virginia supreme court rules for admission to the practice
of law, as amended;
(3) By a representative from a labor organization who has
been recognized by the commissioner as being qualified to
represent a claimant or who is an individual otherwise found to
be qualified by the commissioner to act as a representative.
Such representative shall participate in the presentation of
facts, figures and factual conclusions as distinguished from the presentation of legal conclusions in respect to such facts and
figures; or
(4) Pro se.
(c) At hearings and other proceedings before the
commissioner or before the duly authorized representative of the
commissioner, an employer who is not a natural person may appear
only as follows:
(1) By an attorney duly licensed and admitted to the
practice of law in this state;
(2) By a nonresident attorney duly licensed and admitted to
practice before a court of record of general jurisdiction in
another state or country or in the District of Columbia who has
complied with the provisions of rule 8.0--admission pro hac vice,
West Virginia supreme court rules for admission to the practice
of law, as amended;
(3) By a member of the board of directors of a corporation
or by an officer of the corporation, for purposes of representing
the interest of the corporation in the presentation of facts,
figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to such facts and figures; or
(4) By a representative from an employer service company who
has been recognized by the commissioner as being qualified to
represent an employer or who is an individual otherwise found to
be qualified by the commissioner to act as a representative.
Such representative shall participate in the presentation of
facts, figures and factual conclusions as distinguished from the
presentation of legal conclusions in respect to such facts and
figures.
(d) The commissioner or his or her representative may
require an individual appearing on behalf of a natural person or
corporation to produce satisfactory evidence that he or she is
properly qualified and authorized to so appear pursuant to this
section.
(e) Subsections (b), (c) and (d) of this section shall not
be construed as being applicable to proceedings before the office
of judges pursuant to the provisions of article five of this
chapter.
(f) At the direction of a treating or evaluating
psychiatrist or clinical doctoral level psychologist, a psychiatric or psychological report concerning a claimant who is
receiving treatment or is being evaluated for psychiatric or
psychological problems may be withheld from the claimant. In
that event, a summary of the report shall be compiled by the
reporting psychiatrist or clinical doctoral level psychologist
which summary shall be provided to the claimant upon his or her
request. Any representative or attorney of the claimant must
agree to provide such a claimant with only the summary before the
full report shall be provided to the representative or attorney
for his or her use in preparing the claimant's case. Such a
report shall only be withheld from the claimant in those
instances where the treating or evaluating psychiatrist or
clinical doctoral level psychologist certifies that exposure to
the contents of the full report is likely to cause serious harm
to the claimant or is likely to cause the claimant to pose a
serious threat of harm to a third party.
(g) In making findings of fact and determining issues of
compensability and impairment, it shall be the duty of the
commissioner and administrative law judge to consider and weigh
all relevant evidence. In weighing the evidence, the commissioner or administrative law judge shall consider the
credibility of witnesses, the qualifications of experts, the
bases for expert opinions and generally accepted medical and
scientific principles. In weighing evidence as to the degree of
impairment, the commissioner or administrative law judge shall
not presume that the evidence indicating the highest degree of
impairment accurately represents the degree of impairment
resulting from a compensable injury or disease and shall not
require the employer to prove that the claimant's evidence of
impairment is unreliable, incorrect or clearly attributable to
some other specifically identifiable disease or illness. If it
is determined after weighing all of the evidence in accordance
with the principles above that the evidence is equally probative,
then the claimant shall be given the benefit of a liberal
construction of the evidence and any conflicts resolved in favor
of the claimant. This is the only rule of liberality to be
applied to the determinations of claims and issues under this
chapter, and this rule of liberality shall not relieve a claimant
of the burden to establish entitlement to the benefits being
sought by proper and satisfactory proof.
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 expressions "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,
shall 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) If the injury causes temporary total disability, the
employee shall receive during the continuance thereof weekly
benefits as follows: A maximum weekly benefit to be computed on
the basis of seventy 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 the percentage of
the average weekly wage in West Virginia, as follows: On or after the first day of July, one thousand nine hundred
sixty-nine, forty-five percent; on or after the first day of
July, one thousand nine hundred seventy, fifty percent; on or
after the first day of July, one thousand nine hundred
seventy-one, fifty-five percent; on or after the first day of
July, one thousand nine hundred seventy-three, sixty percent; on
or after the first day of July, one thousand nine hundred
seventy-four, eighty percent; on or after the first day of July,
one thousand nine hundred seventy-five, one hundred percent.
The minimum weekly benefits paid hereunder shall not be less
than twenty-six dollars per week for injuries occurring on or
after the first day of July, one thousand nine hundred
sixty-nine; not less than thirty-five dollars per week for
injuries occurring on or after the first day of July, one
thousand nine hundred seventy-one; not less than forty dollars
per week for injuries occurring on or after the first day of
July, one thousand nine hundred seventy- three; not less than
forty-five dollars per week for injuries occurring on or after
the first day of July, one thousand nine hundred seventy-four;
and for injuries occurring on or after the first day of July, one thousand nine hundred seventy-six, thirty-three and one-third
percent of the average weekly wage in West Virginia, except as
provided in section six-d of this article. In no event, however,
shall such minimum weekly benefits exceed the level of benefits
determined by use of the then applicable federal minimum hourly
wage: Provided, That any claimant receiving permanent total
disability benefits, permanent partial disability benefits or
dependents' benefits prior to the first day of July, one thousand
nine hundred ninety-four, shall not have his or her benefits
reduced based upon the requirement herein that the minimum weekly
benefit shall not exceed the applicable federal minimum hourly
wage.
(c) Subdivision Subsection (b) of this section shall be
limited as follows: Aggregate award for a single injury causing
temporary disability shall be for a period not exceeding two
hundred eight weeks.
(d) For all awards made or decisions entered on or after the
effective date of this subdivision, if the injury causes
permanent total disability, benefits shall be payable during the
remainder of life at the maximum or minimum weekly benefits as provided in subdivision subsection (b) of this section for
temporary total disability. In all claims in which an award for
permanent total disability benefits was made prior to the
effective date of this subsection, such awards shall continue to
be paid at the rate in effect prior to the effective date of this
subsection: Provided, That the provisions of sections one
through eight, article four-a of this chapter shall be applied
thereafter to all such prior awards that were previously subject
to its provisions. A permanent disability of eighty-five percent
or more shall entitle the employee to a rebuttable presumption of
a permanent total disability for the purpose of this section,
subject to the provisions of section six-e of this article.
Under no circumstances shall the commissioner grant an additional
permanent disability award to a claimant receiving a permanent
total disability award, or to a claimant who has previously been
granted permanent disability awards totaling eighty-five percent
or more and has been granted a permanent total disability award:
Provided, That if any claimant thereafter sustains another
compensable injury and has permanent partial disability resulting
therefrom, the total permanent disability award benefit rate shall be computed at the highest benefit rate justified by any of
the compensable injuries, and the cost of any increase in the
permanent total disability benefit rate shall be paid from the
second injury reserve created by section one, article three of
this chapter. In any claim in which a claimant aggregates
permanent partial disability awards in the amount of eighty-five
percent or more after the effective date of this subsection, the
claimant shall be entitled to a permanent total disability award
unless the evidence establishes that the claimant is not
permanently and totally disabled pursuant to subdivision (n) of
this section.
(e) For all awards made or decisions entered on or after the
effective date of this subsection, 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 following
maximum or minimum benefit rates: Seventy 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 the percentage of the average weekly wage in West
Virginia, as follows: On or after the first day of July, one
thousand nine hundred sixty-nine, forty-five percent; on or after
the first day of July, one thousand nine hundred seventy, fifty
percent; on or after the first day of July, one thousand nine
hundred seventy-one, fifty-five percent; on or after the first
day of July, one thousand nine hundred seventy-three, sixty
percent; on or after the first day of July, one thousand nine
hundred seventy-five, sixty-six and two-thirds percent.
The minimum weekly benefit under this subdivision shall be
as provided in subdivision subsection (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 commissioner, with the
following table establishing the minimum percentage of
disability. In determining the percentage of disability, the
commissioner may be guided by, but shall not be limited to, the
disabilities enumerated in the following table, and in no event
shall the disability be less than that 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 finger shall be considered a
thirty-two percent disability.
The loss of index and middle finger shall be considered a
twenty percent disability.
The loss of middle and ring finger shall be considered a
fifteen percent disability.
The loss of ring and little finger shall be considered a ten
percent disability.
The loss of thumb, index and middle finger shall be
considered a forty percent disability.
The loss of index, middle and ring finger shall be
considered a thirty percent disability.
The loss of middle, ring and little finger 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 commissioner, 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 commissioner,
using as a basis the total loss of hearing in both ears.
Should a claimant sustain a compensable injury which results
in the total loss by severance of any of the bodily members named
in this subdivision subsection, die from sickness or
noncompensable injury before the commissioner makes the proper
award for such injury, the commissioner shall make such award to claimant's dependents as defined in this chapter, if any; such
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 such claimant after his or her
remarriage, and that this liability shall not accrue to the
estate of such claimant and shall not be subject to any debts of,
or charges against, such estate.
(g) Should a claimant to whom has been made a permanent
partial award of from one percent to eighty-four percent, both
inclusive, die from sickness or noncompensable injury, the unpaid
balance of such award shall be paid to claimant's dependents as
defined in this chapter, if any; such 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 such claimant after his or her remarriage, and that
this liability shall not accrue to the estate of such claimant
and shall not be subject to any debts of, or charges against,
such estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board shall have the force and effect of an award.
(i) The award for permanent disabilities intermediate to
those fixed by the foregoing schedule and permanent disability of
from one percent to eighty-four percent shall be the same
proportion and shall be computed and allowed by the commissioner
For the purposes of this chapter, with the exception of those
injuries provided for in subsection (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
subsection (f) of this section and section six-b of this article,
the degree of disability shall be determined exclusively by the
provisions of that subsection and that section. Rules shall be
promulgated adopting 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 subsection shall be applicable to all awards and decisions made or entered on or after the effective date of this
subsection.
(j) The percentage of all permanent disabilities other than
those enumerated in subdivision subsection (f) of this section
shall be determined by the commissioner, and awards made in
accordance with the provisions of subdivision subsection (d) or
(e) of this section. Where there has been an injury to a member
as distinguished from total loss by severance of that member, the
commissioner in determining the percentage of disability may be
guided by, but shall not be limited to, the disabilities
enumerated in subdivision subsection (f) of this section.
(k) Compensation payable under any subdivision subsection of
this section shall not exceed the maximum nor be less than the
weekly benefits specified in subdivision subsection (b) of this
section.
(l) Except as otherwise specifically provided in this
chapter, temporary total disability benefits payable under
subdivision subsection (b) of this section shall not be
deductible from permanent partial disability awards payable under
subdivision subsection (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
thereto 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 such injured employee
if there be such 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.
In all other cases permanent disability shall be determined
by the commissioner in accordance with the facts in the case and
award made in accordance with the provisions of subdivision
subsection (d) or (e) of this section.
(n) A disability which renders the injured employee unable
to engage in substantial gainful activity requiring skills or
abilities 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. In addition, the vocational standards
adopted pursuant to subsection (m), section seven, article three,
chapter twenty-one-a of this code shall be considered once they
are effective Any claim for permanent total disability benefits,
other than one governed by subsection (m) of this section, and
which would, prior to the effective date of this subsection, have
been governed by the former provisions of this subsection (n)
shall on and after such date be governed and controlled by the
provisions of section six-e of this article. On and after such
date, any reference in this section and elsewhere in this code to
subsection (n) of this section shall be read and construed as a
reference to section six-e.
§23-4-6c. Benefits payable to certain sheltered workshop
employees; limitations.
Notwithstanding the provisions of section six, six-a or
six-b of this article or any other provision of this chapter, the
minimum weekly benefit payments under subsection (b), section one
six of this article shall not apply to employees who work at nonprofit "workshops" as defined in section one, article one,
chapter five-a of this code. When compensation is due any such
employee, the weekly benefits payable hereunder to such employee
may not exceed seventy sixty-six and two-thirds percent of that
employee's actual weekly wages, and in no event may the average
weekly wage in West Virginia be the basis upon which to compute
the benefits of temporary total disability to employees working
for less than the minimum wage.
§23-4-6e. Permanent total disability awards; qualification;
interdisciplinary examining board; appointment,
terms, quorum and compensation; standards;
limitations.
(a) Other than a claimant qualifying for a permanent total
disability award under subdivision subsection (m), section six of
this article, a claimant shall not, on or after the effective
date of this section, be entitled to a permanent total disability
award without examination and report by the interdisciplinary
examining board appointed by the commissioner pursuant to
subsection (c) of this section, irrespective of whether the date
of injury or last exposure was before or after the effective date
of this section. To be eligible for examination by the interdisciplinary examining board, a claimant must,
notwithstanding the provisions of subsection (d), section one,
article three of this chapter, have:
(1) A rebuttable presumption of permanent total disability
because of permanent partial disability awards totalling
eighty-five percent or more for work-related injuries or diseases
(including disability based upon impairment determined by the
occupational pneumoconiosis board); or
(2) Awards for permanent partial disability for work-related
injuries or diseases totalling sixty-five percent or more
(including disability based upon impairment determined by the
occupational pneumoconiosis board) or awards totalling
eighty-five percent or more for a combination of work-related and
United States military service connected injuries or diseases
(including disability based upon impairment determined by the
occupational pneumoconiosis board), if the physician to whom the
claimant was referred by the commissioner to determine if this
threshold for examination by the examining board has been met
determines on the basis of objective findings that the medical
impairment existing from such injuries or diseases is at least sixty-five or eighty-five percent, as the case may be; or
(3) A compensable injury or disease, including occupational
pneumoconiosis, so serious that the physician to whom the
claimant was referred by the commissioner for evaluation or the
occupational pneumoconiosis board, as the case may be, concluded
on the basis of objective findings that the claimant has medical
impairment of sixty-five percent or more.
(b) If the commissioner concludes on the basis of the report
of examination rendered pursuant to subdivision (2), subsection
(a) of this section that the threshold has not been met, his
conclusion shall be embodied in an order which shall be subject
to objection pursuant to the provisions of section one, article
five of this chapter.
(c) From a list of names of seven persons submitted to the
commissioner by the health care advisory panel, the commissioner
shall appoint an interdisciplinary examining board consisting of
five members to examine and evaluate claimants pursuant to
subsection (a) of this section. The board shall be composed of
three highly qualified physicians with specialties qualifying
them to evaluate impairment and two vocational rehabilitation specialists who are qualified to evaluate the ability of a
claimant to perform gainful employment in the national labor
market with or without retraining and with relocation assistance.
One member of the board shall be designated annually as
chairperson by the commissioner. 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 of the board shall constitute a quorum for the transaction
of business. The commissioner, from time to time, shall fix the
per diem salary, computed on the basis of actual time devoted to
the discharge of their duties, to be paid to each member of the
board, and the members shall also be entitled to reasonable and
necessary traveling and other expenses incurred while actually
engaged in the performance of their duties.
(d) Prior to referral of a claimant to the interdisciplinary
examining board for examination, the commissioner shall obtain
all pertinent records concerning the claimant's medical history
and forward them to the board at the time of the referral. The claimant and the employer may furnish all pertinent information
to the board, and shall furnish to the board any information
requested by the board.
(e) The claimant shall be examined by the board or by a
quorum of the board sitting together. If a claim presents an
issue beyond the expertise of the board, the board may obtain
advice or evaluations by other specialists. On the basis of all
information and its examination, the board shall:
(1) Initially determine whether the claimant is physically
capable of returning to his or her former job with the same
employer without job modifications or accommodations or with job
modifications or accommodations if the employer is willing to
provide such modifications or accommodations, and, if not,
whether the claimant is physically capable of returning to work
for the same employer but in a different job which is available;
(2) If subdivision (1) is determined in the negative,
determine whether the claimant is physically capable of returning
to gainful employment in the national labor market with or
without vocational rehabilitation and with relocation assistance;
(3) If subdivision (2) is determined in the affirmative, and vocational rehabilitation is required, the same shall be provided
by order of the commissioner; and if relocation is necessary, the
claimant shall be entitled to reasonable and necessary moving
expenses and a relocation payment as follows: Relocation within
five hundred miles of residence at time of injury or date of last
exposure, the sum of three thousand dollars; relocation from five
hundred to one thousand miles of such residence, the sum of five
thousand dollars; and relocation one thousand or more miles from
such residence, the sum of seven thousand dollars, all such
expenses and payments to be made by the commissioner, or the
employer if the employer is self-insured; or
(4) If either subdivision (1) or (2) is determined in the
affirmative, the board shall advise the commissioner that the
claimant is not permanently and totally disabled, and if
subdivisions (1) and (2) are determined in the negative,
recommend the granting of a permanent total disability award, but
under no circumstances shall the granting or denial of social
security disability benefits be relevant to the issue of whether
a claimant is entitled to a permanent total disability award
under this chapter.
(f) Upon receipt of the report of the interdisciplinary
examining board, the commissioner shall enter an appropriate
order which shall be subject to objection by either party
pursuant to the provisions of section one, article five of this
chapter, and the members of the board rendering the report shall
appear at the time fixed by the office of judges for a hearing to
submit to examination and cross-examination with respect to the
findings and conclusions of the board. At such hearing, evidence
to support or controvert the findings and conclusions of the
board shall be limited to examination and cross-examination of
the members of the board and the offering of other medical or
vocational evidence.
(g) As a condition to receiving reasonable and necessary
moving expenses and a relocation payment pursuant to subdivision
(3), subsection (e) of this section, the claimant must resign
from the employment he or she held at the time of injury or date
of last exposure, and the claim shall not be subject to reopening
at any time, notwithstanding any other provision of this chapter
to the contrary.
(h) Any claimant who accepts and continues to work a lesser paying job pursuant to the findings of the interdisciplinary
examining board and a vocational rehabilitation plan based on
such findings shall, notwithstanding the provisions of section
nine of this article, be entitled to receive temporary partial
rehabilitation benefits for a period of four years, at such level
as is necessary to ensure the following percentages of the
average weekly wage earnings earned by the claimant at the time
of injury calculated as provided in sections six, six-d and
fourteen of this article as such calculation is performed for
temporary total disability benefits: Eighty percent for the
first year; seventy percent for the second year; sixty percent
for the third year; and fifty percent for the fourth year. In no
event shall such benefits be subject to the minimum benefit
amounts required by the provisions of subsection (b), section six
of this article, nor shall such benefits exceed the temporary
total disability benefits to which the claimant would be entitled
pursuant to sections six, six-d and fourteen of this article
during any period of temporary total disability resulting from
the injury or disease which is the subject of the claim. No
temporary total disability benefits shall be paid for any period for which temporary partial rehabilitation benefits are paid.
(i) Notwithstanding any other provision of this code to the
contrary, payments under any permanent total disability award
granted on or after the effective date of this section, shall
cease being paid to any claimant who has ceased active employment
and is receiving old-age retirement benefits under the Social
Security Act, but the foregoing provisions of this subsection
shall not apply to a permanent total disability award granted
pursuant to subsection (m), section six of this article.
(j) Irrespective of whether the date of injury or last
exposure was before or after the effective date of this section,
no benefits under a permanent total disability award granted on
or after such effective date shall be paid until litigation with
respect to entitlement to such award has been finally determined,
but this limitation on payment shall not apply to a permanent
total disability award granted pursuant to subsection (m),
section six of this article.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the
workers' compensation program to assist workers to return to suitable gainful employment after an injury. In order to
encourage workers to return to employment and to encourage and
assist employers in providing suitable employment to injured
employees, it shall be a priority of the commissioner to achieve
early identification of individuals likely to need rehabilitation
services and to assess the rehabilitation needs of these injured
employees. It shall be the goal of rehabilitation to return
injured workers to employment which shall be comparable in work
and pay to that which the individual performed prior to the
injury. If a return to comparable work is not possible, the goal
of rehabilitation shall be to return the individual to
alternative suitable employment, using all possible alternatives
of job modification, restructuring, reassignment and training, so
that the individual will return to productivity with his or her
employer or, if necessary, with another employer. The
Legislature further finds that it is the shared responsibility of
the employer, the employee, the physician and the commissioner to
cooperate in the development of a rehabilitation process designed
to promote reemployment for the injured employee.
(b) In cases where an employee has sustained a permanent disability, or has sustained an injury likely to result in
temporary disability in excess of one hundred twenty days, and
such fact has been determined by the commissioner, the
commissioner shall at the earliest possible time determine
whether the employee would be assisted in returning to
remunerative employment with the provision of rehabilitation
services and if the commissioner determines that the employee can
be physically and vocationally rehabilitated and returned to
remunerative employment by the provision of rehabilitation
services including, but not limited to, vocational or on-the-job
training, counseling, assistance in obtaining appropriate
temporary or permanent work site, work duties or work hours
modification, by the provision of crutches, artificial limbs, or
other approved mechanical appliances, or medicines, medical,
surgical, dental or hospital treatment, the commissioner shall
forthwith develop a rehabilitation plan for the employee and,
after due notice to the employer, expend such an amount as may
be necessary for the aforesaid purposes: Provided, That such
expenditure for vocational rehabilitation shall not exceed ten
thousand dollars for any one injured employee: Provided, however, That no payment shall be made for such vocational
rehabilitation purposes as provided in this section unless
authorized by the commissioner prior to the rendering of such
physical or vocational rehabilitation, except that payments shall
be made for reasonable medical expenses without prior
authorization if sufficient evidence exists which would relate
the treatment to the injury and the attending physician or
physicians have requested authorization prior to the rendering of
such treatment: Provided further, That payment for physical
rehabilitation, including the purchase of prosthetic devices and
other equipment and training in use of such devices and
equipment, shall be considered expenses within the meaning of
section three of this article and shall be subject to the
provisions of sections three, three-a, three-b and three-c of
this article. The provision of any rehabilitation services shall
be pursuant to a rehabilitation plan to be developed and
monitored by a rehabilitation professional for each injured
employee.
(c) In every case in which the commissioner shall order
physical or vocational rehabilitation of a claimant as provided herein, the claimant shall, during the time he or she is
receiving any vocational rehabilitation or rehabilitative
treatment that renders him or her totally disabled during the
period thereof, be compensated on a temporary total disability
basis for such period.
(d) In every case in which the claimant returns to gainful
employment as part of a rehabilitation plan, and the employee's
average weekly wage earnings are less than the average weekly
wage earnings earned by the injured employee at the time of the
injury, he or she shall receive temporary partial rehabilitation
benefits calculated as follows: The temporary partial
rehabilitation benefit shall be seventy sixty-six and two-thirds
percent of the difference between the average weekly wage
earnings earned at the time of the injury and the average weekly
wage earnings earned at the new employment, both to be calculated
as provided in sections six, six-d and fourteen of this article
as such calculation is performed for temporary total disability
benefits, subject to the following limitations: In no event
shall such benefits be subject to the minimum benefit amounts
required by the provisions of subdivision subsection (b), section six of this article, nor shall such benefits exceed the temporary
total disability benefits to which the injured employee would be
entitled pursuant to sections six, six-d and fourteen of this
article during any period of temporary total disability resulting
from the injury in the claim: Provided, That no temporary total
disability benefits shall be paid for any period for which
temporary partial rehabilitation benefits are paid. The amount
of temporary partial rehabilitation benefits payable under this
subsection shall be reviewed every ninety days to determine
whether the injured employee's average weekly wage in the new
employment has changed and, if such change has occurred, the
amount of benefits payable hereunder shall be adjusted
prospectively. Temporary partial rehabilitation benefits shall
only be payable when the injured employee is receiving vocational
rehabilitation services in accordance with a rehabilitation plan
developed under this section.
(e) The commissioner shall promulgate rules for the purpose
of developing a comprehensive rehabilitation program which will
assist injured workers to return to suitable gainful employment
after an injury in a manner consistent with the provisions and findings of this section. Such rules shall provide definitions
for rehabilitation facilities and rehabilitation services
pursuant to this section.
(f) The provisions of this section shall be terminated and
be of no further force or effect on the first day of July, one
thousand nine hundred ninety-eight.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational
pneumoconiosis or other occupational disease, suffered by an
employee in the course of and resulting from his employment,
causes death, and disability is continuous from date of such
injury until date of death, or if death results from occupational
pneumoconiosis or from any other occupational disease, the
benefits shall be in the amounts and to the persons as follows:
(a) If there be no dependents, the disbursements shall be
limited to the expense provided for in sections three and four of
this article.
(b) If there be dependents as defined in subdivision
subsection (d) of this section, such dependents shall be paid for
as long as their dependency shall continue in the same amount as was paid or would have been paid the deceased employee for total
disability had he lived. The order of preference of payment and
length of dependence shall be as follows:
(1) A dependent widow or widower until death or remarriage
of such widow or widower, and any child or children dependent
upon the decedent until each such child shall reach eighteen
years of age or where such child after reaching eighteen years of
age continues as a full-time student in an accredited high
school, college, university, business or trade school, until such
child reaches the age of twenty-five years or if an invalid child
to continue as long as such child remains an invalid. All such
persons shall be jointly entitled to the amount of benefits
payable as a result of employee's death.
(2) A wholly dependent father or mother until death.
(3) Any other wholly dependent person for a period of six
years after the death of the deceased employee.
(c) If the deceased employee leaves no wholly dependent
person, but there are partially dependent persons at the time of
death, the payment shall be fifty dollars a month, to continue
for such portion of the period of six years after the death, as the commissioner may determine, but no such partially dependent
person shall receive compensation payments as a result of the
death of more than one employee.
Compensation under subdivisions subsections (b) and (c)
hereof shall, except as may be specifically provided to the
contrary therein, cease upon the death of the dependent, and the
right thereto shall not vest in his or her estate.
(d) Dependent, as used in this chapter, shall mean a widow,
widower, child under eighteen years of age, or under twenty-five
years of age when a full-time student as provided herein, invalid
child or posthumous child, who, at the time of the injury causing
death, is dependent, in whole or in part, for his or her support
upon the earnings of the employee, stepchild under eighteen years
of age, or under twenty-five years of age when a full-time
student as provided herein, child under eighteen years of age
legally adopted prior to the injury causing death, or under
twenty-five years of age when a full-time student as provided
herein, father, mother, grandfather or grandmother, who at the
time of the injury causing death, is dependent, in whole or in
part, for his or her support upon the earnings of the employee; and invalid brother or sister wholly dependent for his or her
support upon the earnings of the employee at the time of the
injury causing death.
(e) If a person receiving permanent total disability
benefits dies from a cause other than a disabling injury leaving
any dependents as defined in subdivision (d) of this section, a
lump sum payment shall be made to such dependents in an amount
equal to one hundred four times the weekly benefit the worker was
receiving at the time of his death.
§23-4-16. Commissioner's jurisdiction over case continuous;
modification of finding or order; time limitation
on awards; limitations on reopenings; effect of
retirement; reimbursement of claimant for expenses;
reopening cases involving permanent total
disability; promulgation of rules.
(a) The power and jurisdiction of the commissioner over each
case shall be continuing and he the commissioner may from time to
time, after due notice to the employer, make such modifications
or changes with respect to former findings or orders as may be
justified: Provided, That no further award may be made in fatal
cases arising after the seventh day of March, one thousand nine hundred twenty-nine, except within two years after the death of
the employee, or in case of nonfatal injuries, on and after the
seventh day of March, one thousand nine hundred twenty-nine,
except within five years after the initial period of payments for
temporary disability shall have ceased or not more than two times
within five years after the commissioner shall have made the last
payment in the original award or any subsequent increase thereto
in any permanent disability case: Provided, however, That no
such modification or change may be made in any case in which no
award has been made, except within five years after the date of
injury. Provided further, That a further award may be made for
medical benefits only at any time A claimant shall be permitted
to make an application for additional permanent partial
disability benefits only once in the context of any claim, but as
to any claim for an occupational disease that is medically
recognized to be progressive such as occupational pneumoconiosis,
the provisions of this subsection as they existed immediately
prior to the amendment of this subsection during the regular
session of the Legislature in the year one thousand nine hundred
ninety-five, shall apply. In any case in which an injured employee shall make application for a further adjustment of his
claim, period of temporary total disability benefits, if such
application be in writing and filed within the applicable time
limit as prescribed herein, the commissioner shall pass upon and
determine the merits of such application within thirty days after
the filing thereof but in any case in which an injured employee
shall file an application for benefits or make an application for
a further adjustment of his or her claim, and is retired, no
further award of temporary total disability benefits shall be
made. In any case in which an injured employee shall make
application for a further award of permanent partial disability
benefits or for an award of permanent total disability benefits,
if such application be in writing and filed within the applicable
time limit as prescribed herein, the commissioner shall pass upon
the request within thirty days of its receipt and, if the
commissioner determines that the claimant may be entitled to an
award, the commissioner will then refer the claimant for such
further examinations as may be necessary. An injured employee
shall be permitted to make one application for further medical
treatment or services if the application is in writing and is filed within five years after the last receipt of medical
treatment or services in the context of a claim.
(b) If such application is based on a report of any medical
examination made of the claimant and submitted by the claimant to
the commissioner in support of his or her application, and the
claim is opened for further consideration and an additional award
is later made, the claimant shall be reimbursed for the expenses
of such examination. Such reimbursement shall be made by the
commissioner to the claimant, in addition to all other benefits
awarded, upon due proof of the amount thereof being furnished to
the commissioner by the claimant, but shall in no case exceed the
sum fixed pursuant to the commissioner's schedule of maximum
reasonable fees established under the provisions of section three
of this article.
(c) The commissioner shall have continuing power and
jurisdiction over claims in which permanent total disability
awards have been made after the effective date of this section.
(1) The commissioner shall continuously monitor permanent
total disability awards and may from time to time, after due
notice to the claimant, reopen a claim for reevaluation of the continuing nature of the disability and possible modification of
the award: Provided, That such reopenings shall not be done
sooner than every two years: Provided, however, That any
individual claimant shall only be reevaluated a total of two
times after which he or she may not be again reevaluated under
the provisions of this subsection. The commissioner may reopen
a claim for reevaluation when, in the commissioner's sole
discretion, he or she concludes that there exists good cause to
believe that the claimant no longer meets the eligibility
requirements under subdivision (n), section six of this article.
The eligibility requirements, including any vocational standards,
shall be applied as those requirements are stated at the time of
a claim's reopening. This section shall not be applicable to any
claim in which the final decision on the eligibility of the
claimant to a permanent total disability award was made more than
ten years prior to the date of proposed reevaluation.
(2) Upon reopening a claim under this subsection, the
commissioner may take evidence, have the claimant evaluated, make
findings of fact and conclusions of law and shall vacate, modify
or affirm the original permanent total disability award as the record requires. The claimant's former employer shall not be a
party to the reevaluation, but shall be notified of the
reevaluation and may submit such information to the commissioner
as the employer may elect. In the event the claimant retains his
or her award following the reevaluation, then the claimant's
reasonable attorneys' fees incurred in defending the award shall
be paid by the workers' compensation division from the
supersedeas reserve of the surplus fund. In addition, the
workers' compensation division shall reimburse a prevailing
claimant for his or her costs in obtaining one evaluation on each
issue during the course of the reevaluation with such
reimbursement being made from the supersedeas reserve of the
surplus fund. The compensation programs performance council
shall adopt criteria for the determination of reasonable
attorneys' fees.
(3) This subsection shall not be applied to awards made
under the provisions of subdivision subsection (m), of section
six of this article. The claimant may seek review of the
commissioner's final order as otherwise provided for in article
five of this chapter for review of orders granting or denying permanent disability awards.
ARTICLE 5. REVIEW.
§23-5-1f. Compromise and settlement of claims and issues.
(a) After an objection is filed to a commissioner's
decision, either granting a permanent partial disability award of
fifteen percent or less, or making no award upon a finding that
no permanent partial disability was suffered as the result of the
injury received, the parties may agree to compromise and settle
award the claim or any issue in controversy under the conditions
and limitations set out in this section. In addition, a
reopening petition resulting in an increased permanent partial
disability award of fifteen percent or less or the denial of any
increased award may similarly be compromised and settled. No
other types of settlements shall be permitted. The terms of such
settlement shall be reviewed by the an administrative law judge
as herein provided.
(b) In any claim involving an employer not electing to carry
its own risk within the meaning of section nine, article two of
this chapter, the parties shall notify the commissioner of their
intent to settle a claim and the commissioner may participate, at his or her discretion, as a party in interest in any settlement
proceeding under this section.
(c) The parties seeking to settle and compromise an
objection to a commissioner's decision described in subsection
(a) of this section shall jointly file with the chief
administrative law judge a written memorandum of settlement,
signed by all parties in interest. An administrative law judge
shall review the written memorandum to determine if it is
reasonable and fair, after giving due consideration to the
interests of all parties, and if it is in conformity with the
provisions of this chapter. The administrative law judge, in his
or her discretion, may hear testimony relating to any proposed
settlement and may appoint a guardian ad litem to represent the
interests of any minor who would be bound by the proposed
settlement. If the administrative law judge finds the settlement
to be fair and reasonable, he or she shall issue an order so
finding which shall, for all purposes, constitute an order
appealable to the appeal board as provided under sections one and
three of this article. The administrative law judge shall enter
an order providing for payment of any guardian ad litem. If the settlement is not approved by the administrative law judge, the
settlement agreement between the parties shall be null and void,
and the administrative law judge shall issue an order so finding
which shall be appealable to the appeal board.
(d) A settlement may provide for a final award of greater
than fifteen percent permanent partial disability: Provided,
That no settlement shall be approved which provides for or would
result in a permanent total disability or second injury life
award.
(e) (d) The amounts of compensation payable under a
settlement may be commuted to one or more lump sum payments by
agreement of the parties.
(f) (e) A party seeking to vacate an order approving a
settlement on the grounds that a settlement was obtained by
fraud, undue influence or coercion shall file a petition therefor
with the office of judges within six months after the date of the
order approving the settlement. The petition shall set forth in
particular the facts upon which the grounds alleged therein are
based and shall be served upon all other parties to the
settlement. Upon request by any party to the settlement, the chief administrative law judge shall set the matter down for
hearing. At the conclusion thereof, the chief administrative law
judge shall enter an order setting forth his or her findings of
fact and conclusions of law, which order shall be appealable to
the appeal board. Upon a finding, by clear and convincing
evidence, that the settlement was obtained by fraud, undue
influence or coercion, the chief administrative law judge shall
vacate and set aside the order approving the settlement.
(g) (f) A settlement approved by the administrative law
judge shall be final and binding, as to the particular award in
controversy but shall not affect any right under article four of
this chapter to future medical benefits, to physical and
vocational rehabilitation, or the right to seek a reopening of
the claim pursuant to section sixteen, article four of this
chapter and section one-a of this article and any issue that is
the subject of the settlement agreement shall not be reopened by
either party or by the commissioner, notwithstanding any other
provision of this code to the contrary. If a settlement
agreement provides for both future medical or rehabilitation
costs and a degree of permanent partial disability, then the agreed upon degree of permanent partial disability shall be
stated in the agreement. That degree of permanent partial
disability shall then be entered upon the records of the
commissioner as the award in the claim. In the event that an
employer agrees to settle an issue which settlement is to be paid
directly by the employer and the employer later fails to make the
agreed upon payment, the commissioner shall assume the obligation
to make the payments and shall be entitled to recover the amounts
paid or to be paid from the employer as provided for in section
five-a, article two of this chapter.
(h) For matters pending before the commissioner on the first
day of July, one thousand nine hundred ninety, or thereafter, the
foregoing procedures for settlement shall apply except the
commissioner shall act in the place of the administrative law
judge or chief administrative law judge.
NOTE: The purpose of this bill is to amend the workers'
compensation statute so as to address the permanent total
disability crisis. Specifically, the bill would:
Amend §23-1-13 so as to specify reasonable standards to be
applied in weighing and evaluating evidence in a claim.
Amend §23-4-6 so as to require whole body medical impairment
determinations and to specify that certain claims of permanent
total disability shall not be granted without examination of the
claimant by the interdisciplinary examining board provided for in
the bill, and to substitute a new §23-4-6e for subsection (n).
Amend §§23-4-6, 23-4-6c and 23-4-9 so as to specify that
maximum benefits shall be limited by sixty-six and two-thirds
percent of the weekly wage earnings rather than seventy percent.
The other changes in §23-4-6c are to correct an erroneous
cross-reference.
Add a new §23-4-6e which (i) establishes criteria of
eligibility for examination by the interdisciplinary examining
board limited to work-related and service connected injuries and
diseases; (ii) provides for the appointment of an
interdisciplinary examining board; (iii) requires the obtaining
and furnishing of all pertinent medical records to the examining
board; (iv) specifies the findings to be determined by the
examining board; (v) authorizes the payment of moving expenses
and relocation assistance payments, subject to certain
requirements and limitations; (vi) provides for temporary partial
rehabilitation benefits for four years to a claimant who accepts
a lesser paying job; (vii) provides for the cessation of certain
permanent total disability payments upon receipt of old-age
Social Security benefits; and (viii) defers the payment of
certain permanent total disability awards until entitlement is
finally resolved.
Amend §23-4-10 so as to eliminate the life insurance
provision authorizing 104 weeks of benefits in the event of death
from a nonwork-related cause.
Amend §23-4-16 so as to reduce the number and times within
which a claim may be reopened, except for claims for occupational
diseases which are progressive, and to specify the effect of
retirement on claims for temporary total disability benefits.
Amend §23-5-1f so as to authorize full and final settlement
of any and all issues in a workers' compensation claim.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added. §23-4-6e is new; consequently, underscoring
has been omitted in that section.