H. B. 2773
(By Delegate Ashley)
[Introduced February 24, 1995; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact section twenty-three, article-four,
chapter twenty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
providing for a cost of living increase for persons
receiving permanent total disability benefits from workers'
compensation.
Be it enacted by the Legislature of West Virginia:
That section twenty-three, article four, chapter
twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted to read
as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-23. Permanent total disability benefits; reduction of
disability benefits; social security benefits;
applications; release of information; credit or
reduction of benefits; application of section;
annual cost of living adjustment; severability.
(a) This section is applicable whenever benefits are being
paid for permanent total disability benefits arising under
subdivision (d), (m) or (n), section six of this article or under
section eight-c of this article. This section is not applicable
to the receipt of temporary total disability benefits, the
receipt of permanent partial disability benefits, the receipt of
benefits by partially or wholly dependent persons or to the
receipt of benefits pursuant to the provisions of subsection (e),
section ten of this article. This section is not applicable to
the receipt of medical benefits or the payment therefor.
(b) Whenever applicable benefits are paid to a beneficiary
with respect to the same time period for which old-age insurance
benefit payments under the Social Security Act, 42 U.S.C. 401 and
402, or payments under a self-insurance plan, a wage continuation
plan or a disability insurance policy provided by an employer, are also received or being received by the beneficiary, then such
applicable benefits shall be reduced by these amounts:
(1) Fifty percent of the amount of full old-age insurance
benefits received or being received under the Social Security
Act: Provided, That if the claimant is receiving reduced old-age
retirement benefits, then ten percent of the amount of old-age
social security insurance benefits, had such benefits not been
reduced, shall be deducted from the applicable benefits:
Provided, however, That social security disability benefits shall
not be deducted from the applicable benefits when such disability
benefits are later changed to old-age insurance benefits upon the
claimant's attaining the age specified for such conversion by the
social security administration;
(2) The after-tax amount of the payments received or being
received under a self-insurance plan, a wage continuation plan,
or under a disability insurance policy provided by an employer if
the employee did not contribute directly to the plan or to the
payment of premiums regarding the disability insurance policy; or
(3) The proportional amount, based on the ratio of the
employer's contributions to the total insurance premiums for the policy period involved, of the after-tax amount of the payments
received or being received by the employee pursuant to a
disability insurance policy provided by an employer if the
employee did contribute directly to the payment of premiums
regarding the disability insurance policy: Provided, That in no
event shall applicable benefits be reduced below the minimum
weekly benefits as provided for in subdivisions (b) and (d),
section six of this article.
(c) The commissioner shall notify a claimant or self-insured
employer of possible eligibility for social security benefits and
the requirements for establishing proof of application for those
benefits. Notification shall be promptly mailed by the
commissioner or self-insured employer to the claimant after the
date on which by reason of age the claimant may be entitled to
social security benefits. A self-insured employer shall file a
copy of any such notice of possible eligibility with the
commissioner within ten days of its mailing to the claimant.
(1) Within thirty days after the receipt of the notification
of possible eligibility, the claimant shall:
(A) Make application for social security benefits;
(B) Provide the commissioner or a self-insured employer with
proof of that application; and
(C) Provide the commissioner or self-insured employer with
an authorization for release of information which shall be
utilized by the commissioner or self-insured employer to obtain
necessary benefit entitlement and amount information from the
social security administration. The authorization for release of
information shall be effective for one year.
(2) Failure of the claimant to provide the proof of
application or authorization for release of information shall
allow the commissioner or self-insured employer with the approval
of the commissioner to discontinue the payment of applicable
benefits until the proof of application and the authorization
for release of information is provided. Compensation benefits
withheld shall be reimbursed to the claimant upon the providing
of the required proof of application or the authorization for
release of information, or both.
(d) If the commissioner or the self-insured employer is
required to submit a new authorization for release of information
to the social security administration in order to receive information necessary to comply with this section, the claimant
shall provide the new authorization for release of information
within thirty days of a request by the commissioner or
self-insured employer. Failure of the claimant to provide the
new authorization for release of information shall allow the
commissioner or self-insured employer with the approval of the
commissioner to discontinue the payment of applicable benefits
until the authorization for release of information is provided.
Compensation benefits withheld shall be reimbursed to the
claimant upon the providing of the authorization for release of
information.
(e) Within thirty days after either the date of first
payment of benefits or after the date of application for any
benefit under subsection (b) of this section, whichever is later,
the claimant shall provide the commissioner or self-insured
employer with a properly executed authorization for release of
information which shall be utilized by the commissioner or
self-insured employer to obtain necessary benefit entitlement and
amount information from the appropriate source. The
authorization for release of information shall be effective for one year. Failure of the claimant to provide a properly executed
authorization for release of information shall allow the
commissioner or self-insured employer with the approval of the
commissioner to discontinue the payment of applicable benefits
until the authorization for release of information is provided.
Compensation benefits withheld shall be reimbursed to the
claimant upon the providing of the authorization for release of
information. If the commissioner or the self-insured employer is
required to submit a new authorization for release of information
to the appropriate source in order to receive information
necessary to comply with this section, the claimant shall provide
the new authorization for release of information within thirty
days of a request by the commissioner or self-insured employer.
Failure of the claimant to provide the new authorization for
release of information shall allow the commissioner or
self-insured employer with the approval of the commissioner to
discontinue the payment of applicable benefits until the
authorization for release of information is provided.
Compensation benefits withheld shall be reimbursed to the
claimant upon the providing of the authorization for release of information.
(f) Any benefit payments under the Social Security Act, or
any fund, policy or program as specified under subsection (b) of
this section which the claimant receives after the effective date
of this section and during a period in which the claimant also
receives unreduced workers' compensation benefits shall be
considered to create an overpayment of benefits for that period.
The commissioner or self-insured employer shall calculate the
amount of the overpayment and send a notice of overpayment and a
request for reimbursement to the claimant. Failure by the
claimant to reimburse the commissioner or self-insured employer
within thirty days after the mailing date of the notice of
request for reimbursement shall allow the commissioner or the
self-insured employer, with the approval of the commissioner, to
discontinue fifty percent of future benefits payments. The
benefit payments withheld shall be credited against the amount of
the overpayment. Payment of the appropriate benefit shall resume
when the total amount of the overpayment has been withheld. Any
self-insured employer taking a credit or making a reduction as
provided for in this subsection shall immediately report to the commissioner the amount of the credit or reduction and, as
requested by the commissioner, furnish to the commissioner
satisfactory proof of the basis for a credit or reduction.
(g) Nothing in this section shall be considered to compel a
claimant to apply for early federal social security old-age
benefits or to apply for other early or reduced benefits.
(h) This section applies to awards of permanent total
disability made after the effective date of this section.
(i) The commissioner and the compensation programs
performance council shall promulgate the appropriate rules for
the interpretation, processing and enforcement of this section.
(j) For persons receiving the payment of permanent total
disability benefits under the provisions of this article there
shall be an annual cost of living adjustment which shall
accurately reflect any change in the consumer price index.
Adjustments required by this section shall commence on the first
day of January, one thousand nine hundred ninety-six.
(j) (k) If any portion of this section or any application of
this section is subsequently found to be unconstitutional or in
violation of applicable law, it shall not affect the validity of the remainder of this section or such applications of the section
as are not unconstitutional or in such violation.
NOTE: The purpose of this bill is to provide for an annual
cost of living adjustment, based on the consumer price index, for
persons receiving permanent total disability benefits from
workers' compensation.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.