H. B. 4660
(By Delegate Ennis)
[Introduced February 22, 2010
; referred to the
Committee on Energy, Industry and Labor, Economic Development and
Small Business then the Judiciary.]
A BILL to amend and reenact §23-4-6 of the Code of West Virginia,
1931, as amended, relating to setting forth disability
benefits for employees that receive a foreseeable injury in an
inherently dangerous function required by their employer but
outside scope of employment.
Be it enacted by the Legislature of West Virginia:
That §23-4-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-6. 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 terms "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) For all awards made on and after the effective date of the
amendment and reenactment of this section during the year 2003, if
the injury causes temporary total disability, the employee shall
receive during the continuance of the disability a maximum weekly
benefit to be computed on the basis of 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 one hundred
percent of the average weekly wage in West Virginia:
Provided, That
for any employee who receives a foreseeable injury in the course of
performing an inherently dangerous function that he or she is
required by the employer to perform but is outside the normal scope
of employment, regularly-assigned job description and duties, and
standard operation and functions of the employee, the weekly benefit
is to be one hundred percent of the average weekly wage earnings:
Provided, however, That in no event shall an award for temporary
total disability be subject to annual adjustments resulting from
changes in the average weekly wage in West Virginia
: Provided,
however further, in the case of a claimant whose award was granted
prior to the effective date of the amendment and reenactment of this section during the year 2003, the maximum benefit rate shall be the
rate applied under the prior enactment of this subsection which was
in effect at the time the injury occurred. The minimum weekly
benefits paid under this subdivision shall not be less than thirty-
three and one-third percent of the average weekly wage in West
Virginia, except as provided in sections six-d and nine of this
article. In no event, however, shall the minimum weekly benefits
exceed the level of benefits determined by use of the applicable
federal minimum hourly wage: And
provided further, That any claimant
receiving permanent total disability benefits, permanent partial
disability benefits or dependents' benefits prior to July 1, 1994,
shall not have his or her benefits reduced based upon the
requirement in this subdivision that the minimum weekly benefit
shall not exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section is limited as follows:
Aggregate award for a single injury causing temporary disability
shall be for a period not exceeding two hundred eight weeks;
aggregate award for a single injury for which an award of temporary
total disability benefits is made on or after the effective date of
the amendment and reenactment of this section in the year 2003 shall
be for a period not exceeding one hundred four weeks.
Notwithstanding any other provision of this subdivision to the
contrary, no person may receive temporary total disability benefits
under an award for a single injury for a period exceeding one
hundred four weeks from the effective date of the amendment and reenactment of this section in the year 2003.
(d) For all awards of permanent total disability benefits that
are made on or after February 2, 1995, including those claims in
which a request for an award was pending before the division or
which were in litigation but not yet submitted for a decision, then
benefits shall be payable until the claimant attains the age
necessary to receive federal old age retirement benefits under the
provisions of the Social Security Act, 42 U.S.C. §§401 and 402, in
effect on the effective date of this section. The claimant shall
be paid benefits so as not to exceed a maximum benefit of sixty-six
and two-thirds percent of the claimant's average weekly wage
earnings, wherever earned, at the time of the date of injury not to
exceed one hundred percent of the average weekly wage in West
Virginia:
Provided, That for any employee who receives a
foreseeable injury in the course of performing an inherently
dangerous function that he or she is required by the employer to
perform but is outside the normal scope of employment, regularly-
assigned job description and duties, and standard operation and
functions of the employee, the weekly benefit is one hundred percent
of the average weekly wage earnings. The minimum weekly benefits
paid under this section shall be as is provided
for in subdivision
(b) of this section. In all claims in which an award for permanent
total disability benefits was made prior to February 2, 1995, the
awards shall continue to be paid at the rate in effect prior to the
effective date of the amendment and reenactment of this section in the year 2003:
Provided, however, That the provisions of sections
one through eight, inclusive, article four-a of this chapter shall
be applied thereafter to all prior awards that were previously
subject to its provisions. A single or aggregate permanent
disability of eighty-five percent or more entitles the employee to
a rebuttable presumption of a permanent total disability for the
purpose of paragraph (2), subdivision (n) of this section:
Provided
however, further, That the claimant must also be at least fifty
percent medically impaired upon a whole body basis or has sustained
a thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section. The presumption may
be rebutted if the evidence establishes that the claimant is not
permanently and totally disabled pursuant to subdivision (n) of this
section. Under no circumstances may the commission, successor to
the commission, other private carrier or self-insured employer,
whichever is applicable, grant an additional permanent disability
award to a claimant receiving a permanent total disability award:
And
provided further, That if any claimant thereafter sustains
another compensable injury and has permanent partial disability
resulting from the injury, the total permanent disability award
benefit rate shall be computed at the highest benefit rate justified
by any of the compensable injuries.
(e) (1) For all awards made on or after the effective date of
the amendment and reenactment of this section during the year 2003,
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
maximum or minimum benefit rates as follows: 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 seventy
percent of the average weekly wage in West Virginia:
Provided, That
in no event shall an award for permanent partial disability be
subject to annual adjustments resulting from changes in the average
weekly wage in West Virginia:
Provided, however, That in the case
of a claimant whose award was granted prior to the effective date
of the amendment and reenactment of this section during the year
2003, the maximum benefit rate shall be the rate applied under the
prior enactment of this section which was in effect at the time the
injury occurred.
(2) If a claimant is released by his or her treating physician
to return to work at the job he or she held before the occupational
injury occurred and if the claimant's preinjury employer does not
offer the preinjury job or a comparable job to the employee when a
position is available to be offered, the award for the percentage
of partial disability shall be computed on the basis of six weeks
of compensation for each percent of disability.
(3) 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 percentage of disability,
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 fingers shall be considered a
thirty-two percent disability.
The loss of index and middle fingers shall be considered a
twenty percent disability.
The loss of middle and ring fingers shall be considered a
fifteen percent disability.
The loss of ring and little fingers shall be considered a ten
percent disability.
The loss of thumb, index and middle fingers shall be considered
a forty percent disability.
The loss of index, middle and ring fingers shall be considered
a thirty percent disability.
The loss of middle, ring and little fingers 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 commission, 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 commission,
successor to the commission, other private carrier or self-insured
employer, whichever is applicable, using as a basis the total loss
of hearing in both ears.
If a claimant sustains a compensable injury which results in
the total loss by severance of any of the bodily members named in
this subdivision or dies from sickness or noncompensable injury
before the commission makes the proper award for the injury, the
commission shall make the award to the 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 shall be made to any surviving spouse of
the claimant after his or her remarriage and that this liability
shall not accrue to the estate of the claimant and is not subject
to any debts of, or charges against, the estate.
(g) If a claimant to whom has been made a permanent partial
award dies 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 shall be made to any surviving spouse of
the claimant after his or her remarriage, and that this liability
shall not accrue to the estate of the claimant and is not subject
to any debts of, or charges against, such 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 Commission 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.
This subdivision is applicable to all injuries incurred and diseases
with a date of last exposure on or after February 2, 1995, to all
applications for an award of permanent partial disability made on
and after that date and to all applications for an award of
permanent partial disability that were pending before the commission or pending in litigation but not yet submitted for decision on and
after that date. The prior provisions of this subdivision remain
in effect for all other claims.
(j) From a list of names of seven persons submitted to the
executive director by the health care advisory panel, the executive
director shall appoint an interdisciplinary examining board
consisting of five members to evaluate claimants, including by
examination if the board elects. The interdisciplinary examining
board shall terminate upon termination of the commission and all
administrative and adjudicatory functions performed by the
interdisciplinary examining board shall be performed by the
following reviewing bodies for those claims over which they have
administrative jurisdiction: (1) The Insurance Commissioner or his
or her designated administrator of each of the funds set forth in
this chapter; (2) private carriers; or (3) self-insured employers.
The reviewing bodies shall employ or otherwise engage adequate
resources, including medical professionals, to perform the functions
of the interdisciplinary examining board. 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 executive director. 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 shall constitute a quorum for the transaction of business.
The executive director, from time to time, shall fix the
compensation to be paid to each member of the board, and the members
are also entitled to reasonable and necessary traveling and other
expenses incurred while actually engaged in the performance of their
duties. The board shall perform the duties and responsibilities
assigned by the provisions of this chapter, consistent with the
administrative policies developed by the executive director with the
approval of the board of managers.
(1) The executive director shall establish requirements for the
proper completion and support for an application for permanent total
disability benefits within an existing or a new rule no later than
January 1, 2004. Upon adoption of the rule by the board of
managers, no issue of permanent total disability may be referred to
the interdisciplinary examining board, or, any other reviewing body,
unless a properly completed and supported application for permanent
total disability benefits has been first filed. Prior to the
referral of any issue to the interdisciplinary examining board, or,
upon its termination, prior to a reviewing body's adjudication of
a permanent total disability application, the commission, or
reviewing body shall conduct examinations of the claimant that 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 commission or
reviewing body 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 or other reviewing body and shall
furnish to the board or other reviewing body any information
requested. 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 may have the claimant examined by medical
specialists and vocational rehabilitation specialists:
Provided,
That the employer is entitled to only one examination on each issue
present in a given claim. Any additional examinations must be
approved by the commission or other reviewing body and shall be
granted only upon a showing of good cause. The reports from all
employer-conducted examinations must be filed with the board or
other reviewing body and served upon the claimant. The board or
other reviewing body may request that those persons who have
furnished reports and opinions regarding a claimant provide it with
additional information considered necessary. Both the claimant and
the employer, as well as the commission, or other reviewing body may
submit or obtain reports from experts challenging or supporting the
other reports in the record regardless of whether or not the expert
examined the claimant or relied solely upon the evidence of record.
(2) If the board or a quorum of the board elects to examine a
claimant, the individual members shall conduct any examinations that
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 board of
managers determines that the number of applications pending before
the interdisciplinary examining board has exceeded the level at
which the board can review and make recommendations within a
reasonable time, the board of managers may authorize the executive
director to appoint any additional members to the board that are
necessary to reduce the backlog of applications. The additional
members shall be recommended by the health care advisory panel. The
executive director may make any appointments he or she chooses from
the recommendations. The additional board members shall not serve
a set term but shall serve until the board of managers 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 under the
provisions of subdivision (n) of this section and to questions
related to medical cost containment, utilization review decisions
and managed care decisions arising under section three of this
article.
(4) In the event the board members or other reviewing body
elects to examine a claimant, the board or other reviewing body 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 or other reviewing body and the reasons
for the findings. Copies of the reports of all examinations made
by the board or other reviewing body shall be served upon the
parties and the commission until its termination. Each shall be
given an opportunity to respond in writing to the findings and
conclusions stated in the reports.
(5) The board or other reviewing body shall state its initial
recommendations to the commission in writing with an explanation for
each recommendation setting forth the reasons for each. The
recommendations shall be served upon the parties and the commission
and each shall be afforded a thirty-day opportunity to respond in
writing to the board or other reviewing body regarding its
recommendations. The board or other reviewing body shall review any
responses and issue its final recommendations. The final
recommendations shall be effectuated by the entry of an appropriate
order by the commission, or, upon its termination, the private
carrier or self-insured employer. For all awards for permanent
total disability where the claim was filed on or after the effective
date of the amendment and reenactment of this section in the year
2003, the commission or other reviewing body shall establish the
date of onset of the claimant's permanent total disability as the
date when a properly completed and supported application for permanent total disability benefits as prescribed in subdivision (1)
of this subsection that results in a finding of permanent total
disability was filed with the commission or other reviewing body:
Provided, That upon notification of the commission or other
reviewing body by a claimant or his or her representative that the
claimant seeks to be evaluated for permanent total disability, the
commission or other reviewing body shall send the claimant or his
or her representative the proper application form. The commission
or other reviewing body shall set time limits for the return of the
application. A properly completed and supported application
returned within the time limits set by the commission or other
reviewing body shall be treated as if received on the date the
commission or other reviewing body was notified the claimant was
seeking evaluation for permanent total disability:
Provided,
however, That notwithstanding any other provision of this section
to the contrary, the onset date may not be sooner than the date upon
which the claimant meets the percentage thresholds of prior
permanent partial disability that are established by subsection (n)
of this section as a prerequisite to the claimant's qualification
for consideration for a permanent total disability award.
(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 Commission and the board or other reviewing body and
shall further be limited to the issue of whether the board or other reviewing body 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. The
preponderance of the evidence set forth in article one of this
chapter shall apply to decisions made by reviewing bodies other than
the commission instead of the clearly wrong standard. If either
party contends that the claimant's condition has changed
significantly since the review conducted by the board or other
reviewing body, 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 cause
a copy of the report to be sent to the examining board or other
reviewing body asking the board to review the report and provide
comments if the board chooses within sixty days of the board's
receipt of the report. The board or other reviewing body may either
supply comments or, at the board's or other reviewing body's
discretion, request that the claim be remanded to the board for
further review. If remanded, the claimant is not required to submit
to further examination by the employer's medical specialists or
vocational rehabilitation specialists. Following the remand, the
board or other reviewing body shall file its recommendations with
the administrative law judge for his or her review. If the board
or other reviewing body 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 or other
reviewing body's recommendations or comments, the administrative law
judge shall 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
commission 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 or other reviewing
body's findings and conclusions. Thereafter, based upon the
evidence 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.
The limitation of the scope of review otherwise provided in this
subsection is not applicable upon termination of the commission and
any objections shall be subject to article five of this chapter in
its entirety.
(k) Compensation payable under any subdivision of this section
shall 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 shall not be 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 to the compensation 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 the injured
employee if there are 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.
(n) (1) Other than for those injuries specified in subdivision
(m) of this section, in order to be eligible to apply for an award
of permanent total disability benefits for all injuries incurred and
all diseases, including occupational pneumoconiosis, regardless of
the date of last exposure, on and after the effective date of the
amendment and reenactment of this section during the year 2003, a
claimant: (A) Must have been awarded the sum of fifty percent in
prior permanent partial disability awards; (B) must have suffered
a single occupational injury or disease which results in a finding
by the commission that the claimant has suffered a medical
impairment of fifty percent; or (C) has sustained a thirty-five
percent statutory disability pursuant to the provisions of
subdivision (f) of this section. Upon filing an application, the claim will be reevaluated by the examining board or other reviewing
body pursuant to subdivision (i) of this section to determine if the
claimant has suffered a whole body medical impairment of fifty
percent or more resulting from either a single occupational injury
or occupational disease or a combination of occupational injuries
and occupational diseases or has sustained a thirty-five percent
statutory disability pursuant to the provisions of subdivision (f)
of this section. A claimant whose prior permanent partial
disability awards total eighty-five percent or more shall also be
examined by the board or other reviewing body and must be found to
have suffered a whole body medical impairment of fifty percent in
order for his or her request to be eligible for further review. The
examining board or other reviewing body shall review the claim as
provided for in subdivision (j) of this section. If the claimant
has not suffered whole body medical impairment of at least fifty
percent or has sustained a thirty-five percent statutory disability
pursuant to the provisions of subdivision (f) of this section, the
request shall be denied. Upon a finding that the claimant has a
fifty percent whole body medical impairment or has sustained a
thirty-five percent statutory disability pursuant to the provisions
of subdivision (f) of this section, the review of the application
continues as provided for in the following paragraph of this
subdivision. Those claimants whose prior permanent partial
disability awards total eighty-five percent or more and who have
been found to have a whole body medical impairment of at least fifty percent or have sustained a thirty-five percent statutory disability
pursuant to the provisions of subdivision (f) of this section are
entitled to the rebuttable presumption created pursuant to
subdivision (d) of this section for the remaining issues in the
request.
(2) For all awards made on or after the effective date of the
amendment and reenactment of this section during the year 2003,
disability which renders the injured employee unable to engage in
substantial gainful activity requiring skills or abilities which can
be acquired or which are 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. The comparability of preinjury
income to post-disability income will not be a factor in determining
permanent total disability. Geographic availability of gainful
employment within a driving distance of seventy-five miles from the
residence of the employee or within the distance from the residence
of the employee to his or her preinjury employment, whichever is
greater, will be a factor in determining permanent total disability.
For any permanent total disability award made after the amendment
and reenactment of this section in the year 2003, permanent total
disability benefits shall cease at age seventy years. In addition,
the vocational standards adopted pursuant to subsection (m), section
seven, article three of this chapter shall be considered once they
are effective.
(3) In the event that a claimant, who has been found to have
at least a fifty percent whole body medical impairment or has
sustained a thirty-five percent statutory disability pursuant to the
provisions of subdivision (f) of this section, is denied an award
of permanent total disability benefits pursuant to this subdivision
and accepts and continues to work at a lesser paying job than he or
she previously held, the claimant is eligible, notwithstanding the
provisions of section nine of this article, to receive temporary
partial rehabilitation benefits for a period of four years. The
benefits shall be paid at the level necessary to ensure the
claimant's receipt of the following percentages of the average
weekly wage earnings of the claimant at the time of injury
calculated as provided in this section and sections six-d and
fourteen of this article:
(A) Eighty percent for the first year;
(B) Seventy percent for the second year;
(C) Sixty percent for the third year; and
(D) Fifty percent for the fourth year:
Provided, That in no
event shall the benefits exceed one hundred percent of the average
weekly wage in West Virginia. In no event shall the benefits be
subject to the minimum benefit amounts required by the provisions
of subdivision (b) of this section.
(4) Notwithstanding any provision of this subsection,
subsection (d) of this section or any other provision of this code
to the contrary, on any claim filed on or after the effective date of the amendment and reenactment of this section in the year 2003:
(A) No percent of whole body medical impairment existing as the
result of carpal tunnel syndrome for which a claim has been made
under this chapter may be included in the aggregation of permanent
disability under the provisions of this subsection or subsection (d)
of this section; and
(B) No percent of whole body medical impairment existing as the
result of any occupational disease, the diagnosis of which is based
solely upon symptoms rather than specific, objective and measurable
medical findings, and for which a claim has been made under this
chapter may be included in the aggregation of permanent disability
under the provisions of this subsection or subsection (d) of this
section.
(o) To confirm the ongoing permanent total disability status
of the claimant, the commission, successor to the commission, other
private carrier or self-insured employer, whichever is applicable,
may elect to have any recipient of a permanent total disability
award undergo one independent medical examination during each of the
first five years that the permanent total disability award is paid
and one independent medical examination during each three-year
period thereafter until the claimant reaches the age of seventy
years:
Provided, That the commission, successor to the commission,
other private carrier or self-insured employer, whichever is
applicable, may elect to have any recipient of a permanent total
disability award under the age of fifty years undergo one independent medical examination during each year that the permanent
total disability award is paid until the recipient reaches the age
of fifty years, and thereafter one independent medical examination
during each three-year period thereafter until the claimant reaches
the age of seventy years.
NOTE: The purpose of this bill is to setting forth disability
benefits for employees that receive a foreseeable injury in an
inherently dangerous function required by their employer but outside
scope of employment.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.