H. B. 2652
(By Delegates McGraw, Sparks, Dempsey,
Butcher, Tomblin, Fragale and Dalton)
[Introduced March 20, 1997; referred to the
Committee on Finance then the Judiciary.]
A BILL to amend and reenact sections six and ten, article four,
chapter twenty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended all relating to
workers' compensation disability and death benefits;
classification of and criteria for disability and death
benefits; eliminating the fifty percent threshold for a
permanent total disability qualification; restoring the one
hundred four weeks of death benefits to widows or widowers
of certain deceased claimants; and continuing workers'
compensation benefits for the life of the claimant.
Be it enacted by the Legislature of West Virginia:
That sections six and ten, article four, chapter
twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-6. Classification of and criteria for disability benefits.
Where compensation is due an employee under the provisions
of this chapter for personal injury, the compensation shall be
as provided in the following schedule:
(a) The 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,
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 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 may be not 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,
may 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, may not have his or her benefits
reduced based upon the requirement herein that the minimum weekly
benefit may not exceed the applicable federal minimum hourly
wage.
(c) Subdivision (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) 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 (b)
of this section for temporary total disability. 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. Under no
circumstances may 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) 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 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 (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 is not be limited to, the
disabilities enumerated in the following table, and in no event
may 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, die from sickness or noncompensable injury
before the commissioner makes the proper award for the injury,
the commissioner shall make the award to claimant's dependents
as defined in this chapter, if any; payment to be made in the
same installments that would have been paid to claimant if
living: Provided, That no payment may be made to any surviving
spouse of the claimant after his or her remarriage, and that this
liability does not accrue to the estate of the claimant and is
not subject to any debts of, or charges against, the 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 the award shall be paid to claimant's dependents as
defined in this chapter, if any; the payment to be made in the
same installments that would have been paid to claimant if
living: Provided, That no payment may be made to any surviving
spouse of the claimant after his or her remarriage, and that this
liability does not accrue to the estate of the claimant and is
not subject to any debts of, or charges against, the estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board has the force and effect of an
award.
(i) For the purposes of this chapter, with the exception of
those injuries provided for in subdivision (f) of this section
and in section six-b of this article, the degree of permanent
disability other than permanent total disability shall be
determined exclusively by the degree of whole body medical
impairment that a claimant has suffered. For those injuries
provided for in subdivision (f) of this section and section six-b
of this article, the degree of disability shall be determined
exclusively by the provisions of said subdivision and said
section. The occupational pneumoconiosis board created pursuant
to section eight-a of this article shall premise its decisions on
the degree of pulmonary function impairment that claimants suffer solely upon whole body medical impairment. The workers'
compensation division shall adopt standards for the evaluation of
claimants and the determination of a claimant's degree of whole
body medical impairment. Once the degree of medical impairment
has been determined, that degree of impairment shall be the
degree of permanent partial disability that shall be awarded to
the claimant.
(j) 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 evaluate claimants, including by examination if
the board so elects. The board shall be composed of three
qualified physicians with specialties and expertise qualifying
them to evaluate medical impairment and two vocational
rehabilitation specialists who are qualified to evaluate the
ability of a claimant to perform gainful employment with or
without retraining. One member of the board shall be designated
annually as chairperson by the 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: Provided,
That two of the persons initially appointed shall serve a term of
six years, two of the remaining persons shall serve a term of four years and the remaining member shall serve a term of two
years. Any member of the board may be appointed to any number of
terms. Any two physician members and one vocational
rehabilitation specialist member shall constitute a quorum for
the transaction of business. The 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.
(1) Prior to the referral of any issue to the
interdisciplinary examining board, the division shall conduct
such examinations of the claimant as it finds necessary and
obtain all pertinent records concerning the claimant's medical
history and reports of examinations and forward them to the board
at the time of the referral. The division shall provide adequate
notice to the employer of the filing of the request for a
permanent total disability award and the employer shall be
granted an appropriate period in which to respond to the request.
The claimant and the employer may furnish all pertinent
information to the board and shall furnish to the board any information requested by the board. The claimant and the
employer may each submit no more than one report and opinion
regarding each issue present in a given claim. The employer
shall be entitled to have the claimant examined by medical
specialists and vocational rehabilitation specialists: Provided,
That the employer is entitled to only one such examination on
each issue present in a given claim. Any additional examinations
must be approved by the division and shall be granted only upon
a showing of good cause. The reports from all
employer-conducted examinations shall be filed with the board and
served upon the claimant. The board may request that those
persons who have furnished reports and opinions regarding a
claimant provide it with such additional information as the board
may consider necessary. Both the claimant and the employer, as
well as the division, may submit reports from experts challenging
or supporting the other reports in the record regardless of
whether or not such an expert examined the claimant or relied
solely upon the evidence of record.
(2) If the board or a quorum thereof elects to examine a
claimant, the individual members shall conduct such examinations
as are pertinent to each of their specialties. If a claim
presents an issue beyond the expertise of the board, the board may obtain advice or evaluations by other specialists. In
addition, if the compensation programs performance council
determines that the number of applications pending before the
board has exceeded the level at which the board can review and
make recommendations within a reasonable time, then the council
may authorize the commissioner to appoint additional members to
the board as may be necessary to reduce the backlog of
applications. Any additional members shall be recommended by the
health care advisory panel and the commissioner may make such
appointments as he or she chooses from the recommendations. The
additional board members may not serve a set term but shall serve
until the council determines that the number of pending
applications has been reduced to an acceptable level.
(3) Referrals to the board shall be limited to matters
related to the determination of permanent total disability and to
questions related to medical cost containment, decisions
utilization review decisions and managed care decisions arising
under section three of this article.
(4) In the event the board members elect to examine a
claimant, the board shall prepare a report stating the tests,
examinations, procedures and other observations that were made,
the manner in which each was conducted, and the results of each. The report shall state the findings made by the board and the
reasons therefor. Copies of the reports of all such examinations
shall be served upon the parties and the division and each shall
be given an opportunity to respond in writing to the findings and
conclusions stated in the reports.
(5) The board shall state its initial recommendations to the
division in writing with an explanation for each recommendation
setting forth the reasons for each. The recommendations shall be
served upon the parties and the division and each shall be
afforded a thirty-day opportunity to respond in writing to the
board regarding the board's recommendations. The board shall
then review any responses and issue its final recommendations.
The final recommendations shall then be effectuated by the entry
of an appropriate order by the division.
(6) Except as noted below, objections pursuant to section
one, article five of this chapter to any order shall be limited
in scope to matters within the record developed before the
workers' compensation division and the board and shall further be
limited to the issue of whether the board properly applied the
standards for determining medical impairment, if applicable, and
the issue of whether the board's findings are clearly wrong in
view of the reliable, probative and substantial evidence on the whole record. Should either party contend that the claimant's
condition has changed significantly since the review conducted by
the board, the party may file a motion with the administrative
law judge, together with a report supporting that assertion.
Upon the filing of the motion, the administrative law judge shall
send a copy of the report to the examining board asking the board
to review the report and provide such comments as the board
chooses within sixty days of the board's receipt of the report.
The board may then either supply its comments or, at the board's
discretion, request that the claim be remanded to the board for
further review by the board. If remanded, the claimant is not
required to submit to further examination by the employer's
medical specialists or vocational rehabilitation specialists.
Following a remand, the board shall file its recommendations with
the administrative law judge for his or her review. If the board
elects to respond with comments, the comments shall be filed with
the administrative law judge for his or her review. Following
the receipt of either the board's recommendations or comment, the
administrative law judge shall then issue a written decision
ruling upon the asserted change in the claimant's condition. No
additional evidence may be introduced during the review of the
objection before the office of judges or elsewhere on appeal: Provided, That each party and the division may submit one written
opinion on each issue pertinent to a given claim based upon a
review of the evidence of record either challenging or defending
the board's findings and conclusions. Thereafter, based upon the
evidence then of record, the administrative law judge shall issue
a written decision containing his or her findings of fact and
conclusions of law regarding each issue involved in the
objection.
(k) Compensation payable under any subdivision of this
section may not exceed the maximum nor be less than the weekly
benefits specified in subdivision (b) of this section.
(l) Except as otherwise specifically provided in this
chapter, temporary total disability benefits payable under
subdivision (b) of this section are not deductible from permanent
partial disability awards payable under subdivision (e) or (f) of
this section. Compensation, either temporary total or permanent
partial, under this section shall be payable only to the injured
employee and the right thereto does not vest in his or her
estate, except that any unpaid compensation which would have been
paid or payable to the employee up to the time of his or her
death, if he or she had lived, shall be paid to the dependents of
the injured employee if there be any dependents at the time of death.
(m) The following permanent disabilities shall be
conclusively presumed to be total in character:
Loss of both eyes or the sight thereof;
Loss of both hands or the use thereof;
Loss of both feet or the use thereof;
Loss of one hand and one foot or the use thereof.
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 (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.
§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 or her
employment, causes death, and disability is continuous from date
of such that 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(d) of
this section, such those dependents shall be paid for as long as
their dependency shall continue continues in the same amount as
was paid or would have been paid the deceased employee for total
disability had he or she lived. The order of preference of
payment and length of dependence shall be as follows:
(1) A dependent widow or widower until his or her death or
remarriage, of such widow or widower and any child or children
dependent upon the decedent until each such the dependent child
shall reach reaches 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 the child reaches the age of twenty-five years or if an invalid child to continue as long as
such the child remains an invalid. All such dependent persons
shall be jointly entitled to the amount of benefits payable as a
result of the 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 a portion of the period of six years after the death, as
the division may determine: but no such Provided, That no
partially dependent person shall may receive compensation
payments as a result of the death of more than one employee.
Compensation under subdivisions (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 does not vest in his or her estate.
(d) "Dependent", as used in this chapter, shall mean means
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 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) (1) If a person receiving permanent total disability
benefits which were awarded prior to the second day of February,
one thousand nine hundred ninety-five, dies from a cause other
than a disabling injury leaving any dependents as defined in
subdivision (d) of this section, an award a lump sum payment
shall be made to such his or her dependents in an amount equal to
one hundred four times the weekly benefit the worker employee was
receiving at the time of his or her death. The award shall be
paid to the dependents in the same interval at which the decedent
had been receiving benefits prior to his or her death.
(2) On and after the second day of February, one thousand
nine hundred ninety-five, when an award of permanent total
disability benefits is made, a claimant shall make a one-time
election of whether to receive the full amount of payments for
the award or to receive a reduced payment in order to provide an
annuity payment to his or her dependents. The sum of twenty
thousand dollars shall be the initial amount of the annuity.
Thereafter, the compensation programs performance council shall
review the annuity amount at least every three years. The
council shall also from time to time determine the amount of the
reduction in benefits that will be used to contribute towards the
full amount necessary to purchase the annuity. The council may,
from time to time as it deems appropriate, fix an amount which
the fund will contribute toward the purchase of annuities. The
commissioner and the council are authorized to either fund such
annuities through the investments of the workers' compensation
fund or through the use of a private provider of annuities. The
selection of such a private provider of annuities shall be
through competitive bids. If at the time of the claimant's death
he or she has no dependents, then the proceeds of the annuity
shall remain with the fund. Should such a claimant's entitlement
to receive the permanent total disability award terminate due to his or her attaining the necessary retirement age provided for by
subdivision (d), section six of this article or for any other
reason other than the death of the claimant, then the annuity
shall be canceled and the proceeds thereof shall remain with the
fund.
NOTE: The purpose of this bill is to eliminate the fifty
percent threshold for a permanent total disability qualification
for workers' compensation benefits; to restore 104 weeks of death
benefits to surviving spouses of deceased claimants; and to
continue workers' compensation benefits for the life of the
claimant.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§23-4-6 has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.