FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
to the Committee on Government Organization; and then to the Committee on the
Judiciary]
A BILL to amend and
reenact §23-4-1 of the Code of West Virginia, 1931, as amended, relating to
whom Workers’ Compensation Fund is disbursed; and including rebuttable
presumptions for certain injuries and diseases for firefighters, volunteer firefighters
and municipal, county and state police officers.
Be it enacted by the
Legislature of West Virginia:
That
§23-4-1 of the Code of West Virginia, 1931, as amended, be amended and
reenacted to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1. To whom
compensation fund disbursed; occupational pneumoconiosis and other occupational
diseases included in "injury" and "personal
injury"; definition of occupational
pneumoconiosis and other occupational diseases; rebuttable presumption for
cardiovascular injury and disease or pulmonary disease for firefighters.
(a) Subject to the
provisions and limitations elsewhere in this chapter, workers' compensation benefits shall be paid the Workers' Compensation Fund, to the employees of employers
subject to this chapter who have received personal injuries in the course of
and resulting from their covered employment or to the dependents, if any, of
the employees in case death has ensued, according to the provisions hereinafter
made: Provided, That in the case of if any employee of the
state and its political subdivisions, including: counties; municipalities;
cities; towns; any separate corporation or instrumentality established by one
or more counties, cities or towns as permitted by law; any corporation or
instrumentality supported in most part by counties, cities or towns; any public
corporation charged by law with the performance of a governmental function and
whose jurisdiction is coextensive with one or more counties, cities or towns;
any agency or organization established by the Department of Mental Health, or its successor
agencies, for the provision of
community health or mental retardation services and which is supported, in
whole or in part, by state, county or municipal funds; board, agency,
commission, department or spending unit, including any agency created by rule
of the Supreme Court of Appeals, who have
received personal injuries in the course of and resulting from their covered
employment, the employees are ineligible to receive compensation while the
employees are at the same time and for the same reason drawing sick leave
benefits. The state employees may only use sick leave for nonjob-related
absences consistent with sick leave use and may draw workers' compensation benefits only where there is a
job-related injury. This proviso shall does not apply to
permanent benefits: Provided, however, That the employees may collect
sick leave benefits until receiving temporary total disability benefits. The
Division of Personnel shall promulgate propose rules for legislative approval pursuant to article three, chapter twenty-nine-a of
this code relating to use of sick leave benefits by employees receiving
personal injuries in the course of and resulting from covered employment: Provided
further, That in the event an if an employee is injured in
the course of and resulting from covered employment and the injury results in
lost time from work and the employee for whatever reason uses or obtains sick
leave benefits and subsequently receives temporary total disability benefits
for the same time period, the employee may be restored sick leave time taken by
him or her as a result of the compensable injury by paying to his or her
employer the temporary total disability benefits received or an amount equal to
the temporary total disability benefits received. The employee shall be
restored sick leave time on a day-for-day basis which corresponds to temporary
total disability benefits paid to the employer: And provided further, That since the intent of this subsection is to prevent an employee
of the state or any of its political subdivisions from collecting both
temporary total disability benefits and sick leave benefits for the same time
period, nothing in this subsection prevents an employee of the state or any of
its political subdivisions from electing to receive either sick leave benefits
or temporary total disability benefits, but not both.
(b) For the purposes of
this chapter, the terms "injury" and "personal
injury" include occupational
pneumoconiosis and any other occupational disease, as hereinafter defined, and
workers' compensation benefits shall be
paid to the employees of the employers in whose employment the employees have
been exposed to the hazards of occupational pneumoconiosis or other
occupational disease and in this state have contracted occupational
pneumoconiosis or other occupational disease, or have suffered a perceptible
aggravation of an existing pneumoconiosis or other occupational disease, or to
the dependents, if any, of the employees, in case death has ensued, according
to the provisions hereinafter made: Provided, That compensation shall
not be is not payable for the disease of occupational
pneumoconiosis, or death resulting from the disease, unless the employee has
been exposed to the hazards of occupational pneumoconiosis in the State of West
Virginia over a continuous period of not less than two years during the ten
years immediately preceding the date of his or her last exposure to such
these hazards, or for any five of the fifteen years immediately
preceding the date of his or her last exposure. An application for benefits on account of occupational
pneumoconiosis shall set forth the name of the employer or employers and the
time worked for each. The commission may allocate to and divide any charges
resulting from such claim among the employers by whom the claimant was employed
for as much as sixty days during the period of three years immediately
preceding the date of last exposure to the hazards of occupational
pneumoconiosis. The allocation shall be based upon the time and degree of
exposure with each employer.
(c) For the purposes of
this chapter, disability or death resulting from occupational pneumoconiosis,
as defined in subsection (d) of this section, shall be treated and compensated
as an injury by accident.
(d) Occupational
pneumoconiosis is a disease of the lungs caused by the inhalation of minute
particles of dust over a period of time due to causes and conditions arising
out of and in the course of the employment. The term "occupational pneumoconiosis" includes, but is not limited to, such diseases as
silicosis, anthracosilicosis, coal worker's
pneumoconiosis, commonly known as black lung or miner's asthma, silicotuberculosis (silicosis accompanied by
active tuberculosis of the lungs), coal worker's
pneumoconiosis accompanied by active tuberculosis of the lungs, asbestosis,
siderosis, anthrax and any and all other dust diseases of the lungs and
conditions and diseases caused by occupational pneumoconiosis which are not
specifically designated in this section meeting the definition of occupational
pneumoconiosis set forth in this subsection.
(e) In determining the
presence of occupational pneumoconiosis, X-ray evidence may be considered, but shall
may not be accorded greater weight than any other type of evidence
demonstrating occupational pneumoconiosis.
(f) For the purposes of
this chapter, occupational disease means a disease incurred in the course of
and resulting from employment. No ordinary disease of life to which the general
public is exposed outside of the employment is compensable except when it
follows as an incident of occupational disease as defined in this chapter.
Except in the case of occupational pneumoconiosis, a disease shall be
considered to have been incurred in the course of or to have resulted from the
employment only if it is apparent to the rational mind, upon consideration of
all the circumstances: (1) That there is a direct causal connection between the
conditions under which work is performed and the occupational disease; (2) that
it can be seen to have followed as a natural incident of the work as a result
of the exposure occasioned by the nature of the employment; (3) that it can be
fairly traced to the employment as the proximate cause; (4) that it does not
come from a hazard to which workmen would have been equally exposed outside of
the employment; (5) that it is incidental to the character of the business and
not independent of the relation of employer and employee; and (6) that it
appears to have had its origin in a risk connected with the employment and to
have flowed from that source as a natural consequence, though it need not have
been foreseen or expected before its contraction: Provided, That
compensation shall may not be payable for an occupational disease
or death resulting from the disease unless the employee has been exposed to the
hazards of the disease in the State of West Virginia over a continuous period
that is determined to be sufficient, by rule of the board of managers, for the
disease to have occurred in the course of and resulting from the employee's employment. An
application for benefits on account of an occupational disease shall set forth
the name of the employer or employers and the time worked for each. The
commission may allocate to and divide any charges resulting from such the
claim among the employers by whom the claimant was employed. The allocation
shall be based upon the time and degree of exposure with each employer.
(g) No award shall may
be made under the provisions of this chapter for any occupational disease
contracted prior to July 1, 1949. An
employee shall be considered to have has contracted an
occupational disease within the meaning of this subsection if the disease or
condition has developed to such an extent that it can be diagnosed as an
occupational disease.
(h) (1) For purposes
of this chapter, a rebuttable presumption that a professional firefighter, a member of a
volunteer fire department, a municipal police officer, a county police officer
or a member of the West Virginia State Police, who has developed a cardiovascular or pulmonary
disease or sustained a cardiovascular injury has received an injury or
contracted a disease arising out of and in the course of his or her employment
exists if: (i) The person has been actively employed by a fire department, volunteer fire
department or as a police officer by a municipality, a county, or the West
Virginia State Police as a
professional firefighter, volunteer fire fighter or a municipal, county or state
police officer for a minimum of two
years prior to the cardiovascular injury or onset of a cardiovascular or
pulmonary disease or death; and (ii) the injury or onset of the disease or
death occurred within six months of having participated in firefighting or a
training or drill exercise which actually involved firefighting or in the course of regular
police work or a training or drill exercise related to police work on the
municipal, county or state level. When the above conditions are met, it shall be
is presumed that sufficient notice of the injury, disease or death has
been given and that the injury, disease or death was not self inflicted.
(2) The Insurance
Commissioner shall study the effects of the rebuttable presumptions created in
this subsection on the premiums charged for workers' compensation for professional municipal firefighters;
the probable effects of extending these presumptions to volunteer firefighters;
and the overall impact of the risk management programs, wage replacement,
premium calculation, the number of hours worked per volunteer, treatment of
nonactive or "social" members of a volunteer crew and the feasibility of
combining various volunteer departments under a single policy on the
availability and cost of providing workers' compensation coverage to volunteer firefighters. The
Insurance Commissioner shall file the report with the Joint Committee on
Government and Finance no later than December 1, 2008
(i) Claims for occupational
disease as defined in subsection (f) of this section, except occupational
pneumoconiosis for all workers and pulmonary disease and cardiovascular injury
and disease for professional firefighters, shall be processed in like manner as
claims for all other personal injuries.
(j) On or before January
1, 2004, the Workers' Compensation
Commission shall adopt standards for the evaluation of claimants and the
determination of a claimant's
degree of whole-body medical impairment in claims of carpal tunnel syndrome
NOTE: The purpose of this bill is
to provide rebuttable presumptions for certain injuries and diseases for
Workers Compensation coverage for certain firefighters and police officers.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.