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.