FISCAL
NOTE
WEST virginia Legislature
2017 regular session
By
[
A BILL to amend and
reenact §23-4-1 of the Code of West Virginia, 1931, as amended, relating to workers’
compensation disability and death benefits; defining “professional
firefighter”; and requiring the Insurance Commissioner to study the effects of
the rebuttable presumptions created on the premiums charged for workers’
compensation for professional firefighters and the overall impact of the risk
management programs, wage replacement, premium calculation for the cost
providing coverage and the separation of professional firefighter functions
from nonactive, nonfirefighting or support functions in volunteer fire departments.
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 any employees 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 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 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 rules 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 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
(1) “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 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 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; and
(2) “Professional
firefighter” means a member of a fire department that has received not less
than the minimum education and training as provided in section five-d, article
three, chapter twenty-nine of this code and performs functions for suppressing
fire, performing rescue, controlling hazardous material releases and other
related duties regardless of compensation as a volunteer or career firefighter.
(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 workers pneumoconiosis, commonly known as black lung or
miners asthma, silicotuberculosis (silicosis accompanied by active tuberculosis
of the lungs), coal workers 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 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 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 employees 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 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 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 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 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 as a professional firefighter 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 fire fighting. When the
above conditions are met, it shall be 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, nonfirefighting
or support functions "social" members of
a volunteer crew fire department and the feasibility of combining
various volunteer fire departments under a single policy on the
availability and cost of providing worker’s compensation coverage to volunteer
professional firefighter functions in volunteer fire departments and
separating individuals providing nonactive, nonfirefighting or support
functions in volunteer fire departments.
The Insurance Commissioner shall file the report with the Joint
Committee on Government and Finance no later than December 1, 2008 November
1, 2017.
(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 claimants degree of
whole-body medical impairment in claims of carpal tunnel syndrome.
NOTE: The purpose of this bill is
to define “professional firefighter” for purposes of Workers’ Compensation
disability and death benefits and to require the Insurance Commissioner to
study the effects of the rebuttable presumptions created in this section on the
premiums charged for workers' compensation for professional firefighters and
the overall impact of the risk management programs, wage replacement, premium
calculation for the cost providing coverage to professional firefighters and
the separation of professional firefighter functions from nonactive, nonfirefighting
or support functions in volunteer fire departments.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring
indicates new language that would be added.