Introduced Version
House Bill 4409 History
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Key: Green = existing Code. Red = new code to be enacted
H. B. 4409
(By Delegate Louisos)
[Introduced
February 9, 2010
; referred to the
Committee on Finance.]
A BILL to amend the Code of West Virginia, 1931, as amended, to
amend said code by adding thereto a new article, designated
§9-4F-1, §9-4F-2, §9-4F-3 and §9-4F-4; and to amend and
reenact §23-4-6 of said code; and to amend said code by adding
thereto a new article, designated §23-4D-1, §23-4D-2, §23-4D-3
and §23-4D-4; and to amend and reenact §31A-3-2 of said code,
all relating to collection by the state of seventy-five
percent of overdraft fees assessed by financial institutions
and using that money to finance the funds created in the bill;
creating the Supplemental Personal Needs Allowance Fund for
the purpose of increasing the monthly personal needs allowance
received by Medicaid recipients who are residents of nursing
homes or personal care homes to $75; and creating the Workers'
Lifetime Total Disability Fund for the purpose of continuing
permanent total disability benefits to injured workers over
seventy years of age.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §9-4F-1, §9-4F-2,
§9-4F-3 and §9-4F-4; that §23-4-6 of said code be amended and
reenacted; that said code be amended by adding thereto a new
article, designated §23-4D-1, §23-4D-2, §23-4D-3 and §23-4D-4; and
that §31A-3-2 of said code be amended and reenacted, all to read as
follows:
CHAPTER 9. HUMAN SERVICES.
ARTICLE 4F. SUPPLEMENTAL PERSONAL NEEDS ALLOWANCE FUND.
§9-4F-1. Supplemental Personal Needs Allowance Fund created.
There is created the "Supplemental Personal Needs Allowance
Fund" for the purpose of increasing the monthly personal needs
allowance granted to Medicaid recipients who are residents of
nursing homes or personal care homes. The fund consists of fifty
percent of the funds collected pursuant to legislative rules
adopted pursuant to subsection (e), section two, article three,
chapter thirty-one-a of this code. The fund shall be in the
custody of the State Treasurer and disbursements of the fund shall
be made upon requisition signed by the Secretary of the Department
of Health and Human Resources to those persons entitled to
participate in the fund and in the amounts to each participant that
are provided in section three of this article.
§9-4F-2. To whom benefits paid.
To participate in the Supplemental Personal Needs Allowance
Fund, an individual must be a recipient of Medicaid and be a
resident of a nursing home or personal care home.
§9-4F-3. Computation of benefits.
(a) No later than July 1, 2010, the secretary shall propose a
legislative rule that increases the monthly personal needs
allowance paid to Medicaid recipients who are residents of nursing
homes or personal care homes to $75, including the monthly
allowance received from Medicaid on the effective date of this act.
(b) Each individual entitled to participate in the
Supplemental Personal Needs Allowance Fund is entitled to receive
monthly benefits from the fund in accordance with legislative rules
promulgated pursuant to subsection (a) of this section.
§9-4F-4. Supplemental Personal Needs Allowance Fund; how funded.
For the purpose of carrying out the provisions of this
article, the Secretary of the Department of Health and Human
Resources shall transfer annually, out of the amount assessed
against financial institutions pursuant to legislative rules
promulgated pursuant to subsection (e), section two, article three,
chapter thirty-one-a of this code, an amount estimated by the
secretary to be necessary to carry out the provisions of this
article for one year. The money shall be deposited by the
secretary into the Supplemental Personal Needs Allowance Fund, as
required by this article.
CHAPTER 23. WORKERS' COMPENSATION.
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 are 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 in 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 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, in
the case of a claimant whose award was granted prior to before the
effective date of the amendment and reenactment of this section
during the year in 2003, the maximum benefit rate shall be is 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 may 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 may not exceed the level of benefits determined by use of
the applicable federal minimum hourly wage: Provided further, That
any claimant receiving permanent total disability benefits,
permanent partial disability benefits or dependents' benefits prior
to before July 1, 1994, shall may not have his or her benefits
reduced based upon the requirement in this subdivision that the
minimum weekly benefit shall may 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 are 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. 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 before February 2, 1995, the awards
shall continue to be paid at the rate in effect prior to before the
effective date of the amendment and reenactment of this section in
the year 2003: Provided, 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,
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:
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 is considered a ten percent
disability.
The loss of a great toe (one phalanx) shall be is considered
a five percent disability.
The loss of other toes shall be is considered a four percent
disability.
The loss of other toes (one phalanx) shall be is considered a
two percent disability.
The loss of all toes shall be is considered a twenty-five
percent disability.
The loss of forepart of foot shall be is considered a thirty
percent disability.
The loss of a foot shall be is considered a thirty-five
percent disability.
The loss of a leg shall be is considered a forty-five percent
disability.
The loss of thigh shall be is considered a fifty percent
disability.
The loss of thigh at hip joint shall be is considered a sixty
percent disability.
The loss of a little or fourth finger (one phalanx) shall be
is considered a three percent disability.
The loss of a little or fourth finger shall be is considered
a five percent disability.
The loss of ring or third finger (one phalanx) shall be is
considered a three percent disability.
The loss of ring or third finger shall be is considered a five
percent disability.
The loss of middle or second finger (one phalanx) shall be is
considered a three percent disability.
The loss of middle or second finger shall be is considered a
seven percent disability.
The loss of index or first finger (one phalanx) shall be is
considered a six percent disability.
The loss of index or first finger shall be is considered a ten
percent disability.
The loss of thumb (one phalanx) shall be is considered a
twelve percent disability.
The loss of thumb shall be is considered a twenty percent
disability.
The loss of thumb and index fingers shall be is considered a
thirty-two percent disability.
The loss of index and middle fingers shall be is considered a
twenty percent disability.
The loss of middle and ring fingers shall be is considered a
fifteen percent disability.
The loss of ring and little fingers shall be is considered a
ten percent disability.
The loss of thumb, index and middle fingers shall be is
considered a forty percent disability.
The loss of index, middle and ring fingers shall be is
considered a thirty percent disability.
The loss of middle, ring and little fingers shall be is
considered a twenty percent disability.
The loss of four fingers shall be is considered a thirty-two
percent disability.
The loss of hand shall be is considered a fifty percent
disability.
The loss of forearm shall be is considered a fifty-five
percent disability.
The loss of arm shall be is considered a sixty percent
disability.
The total and irrecoverable loss of the sight of one eye shall
be is 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 is considered a twenty-two and one-half percent
disability. The total and irrecoverable loss of hearing of both
ears shall be is 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 may be made to any surviving spouse
of the claimant after his or her remarriage and that this liability
shall does 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 may be made to any surviving spouse
of the claimant after his or her remarriage, and that this
liability shall does 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 is
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 is 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 is 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 is 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 before 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 Before 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 are 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 If 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 applies 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 are subject to article five of this chapter
in its entirety.
(k) Compensation payable under any subdivision of this section
shall 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 shall not be 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 is payable only to the injured
employee and the right to the compensation shall may 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 in 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 two thousand three, 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 If 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 may not exceed one hundred percent of the
average weekly wage in West Virginia. In no event shall The
benefits be are not 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
ARTICLE 4D. WORKERS' LIFETIME TOTAL DISABILITY FUND.
§23-4D-1. Workers' Lifetime Total Disability Fund created.
The "Workers' Lifetime Disability Fund" is created for the
purpose of continuing permanent total disability benefits to
persons who have had those benefits terminated based on that person
reaching seventy years of age. The fund consists of fifty percent
of the funds collected pursuant to legislative rule adopted
pursuant to subsection (e), section two, article three, chapter
thirty-one-a of this code. The fund shall be in the custody of the
State Treasurer and disbursements of the fund shall be made upon
requisition signed by the Insurance Commissioner to those persons
entitled to participate in the fund and in the amounts to each
participant that are provided in section three of this article.
§23-4D-2. To whom benefits paid.
To participate in the Workers' Lifetime Disability Fund, an
individual must be over seventy years of age and otherwise entitled
to receive workers' compensation permanent total disability
benefits by virtue of and under the laws of this state.
§23-4D-3. Computation of benefits; reinstatement of benefits.
(a) Each individual entitled to participate in the Workers'
Lifetime Disability Fund is entitled to receive payments without
application, except as required in subsection (c) of this section, from the fund in an amount equal to the benefits he or she received
pursuant to a permanent total disability award before that
individual attained seventy years of age.
(b) By December 1 of each year, the Insurance Commissioner
shall require each self-insured employer to provide a verified list
of the names and addresses of all persons who are receiving
permanent total disability benefits from the employer and will
attain the age of seventy in the following calendar year.
(c) An individual who has had his or her permanent total
disability benefits terminated pursuant to the age limitation in
section six, article four of this chapter before the 2010
amendments may request to have his or her permanent total benefits
reinstated. The benefits shall be reinstated, payable by the
Workers' Lifetime Total Disability fund, if the individual is still
entitled to permanent total disability benefits by virtue of and
under the laws of this state. Successful reinstatement of benefits
under this subsection is not retroactive, and individuals shall
only be paid for benefits accrued after the effective date of this
act.
§23-4D-4. Workers' Lifetime Total Disability Fund; how funded.
For the purpose of carrying out the provisions of this
article, the Insurance Commissioner shall transfer annually, out of
the amount assessed against financial institutions pursuant
legislative rules promulgated pursuant to subsection (e), section
two, article three, chapter thirty-one-a of this code, an amount
estimated by the Insurance Commissioner to be necessary to carry out the provisions of this article for one year. The money shall
be deposited by the Insurance Commissioner into the Workers'
Lifetime Total Disability Fund, as required by this article.
CHAPTER 31A. BANKS AND BANKING.
ARTICLE 3. BOARD OF BANKING AND FINANCIAL INSTITUTIONS.
§31A-3-2. General powers and duties.
(a) In addition to other powers conferred by this chapter, the
board has the power to:
(1) Regulate its own procedure and practice;
(2) Promulgate Propose reasonable rules for legislative
approval to implement any provision of this article in accordance
with the provisions of article three, chapter twenty-nine-a of this
code;
(3) Advise the Commissioner in all matters within his or her
jurisdiction;
(4) Study the organization, programs and services of financial
institutions and the laws relating thereto in this state and in
other jurisdictions and to report and recommend to the Governor and
the Legislature all such changes and amendments in laws, policies
and procedures relating thereto as it considers proper;
(5) Grant permission and authority to a financial institution:
(A) To participate in a public agency hereafter created under
the laws of this state or of the United States, the purpose of
which is to afford advantages or safeguards to financial
institutions or to depositors therein and to comply with all lawful
requirements and conditions imposed upon those participants; and
(B) To pay interest on demand deposits of the United States or
any agency thereof, if the payment of interest is permitted under
any applicable federal law, rule or regulation; and
(6) Seek judicial enforcement to compel compliance with any of
its orders and to seek and obtain civil penalties as set forth
under this chapter.
(b) The board also has the power, by entering appropriate
orders, to:
(1) Restrict the withdrawal of deposits from any financial
institution when, in the judgment of the board, extraordinary
circumstances make the restrictions necessary for the protection of
creditors of and depositors in the affected institution;
(2) Compel the holder of shares in any corporate financial
institution to refrain from voting the shares on any matter when,
in the judgment of the board, the order is necessary to protect the
institution against reckless, incompetent or careless management,
to safeguard funds of depositors in the institution or to prevent
willful violation of any applicable law or of any rule and
regulation or order issued thereunder. In such a case the shares
of the holder may not be counted in determining the existence of a
quorum or a percentage of the outstanding shares necessary to take
any corporate action;
(3) Approve or disapprove applications to incorporate and
organize state banking institutions in accordance with the
provisions of sections six and seven, article four of this chapter;
(4) Approve or disapprove applications to incorporate and organize state-chartered bankers' banks in accordance with the
provisions of sections six and seven, article four of this chapter;
(5) Exempt a bankers' bank from any provision of this chapter
if the board finds that the provision is inconsistent with the
purpose for which a bankers' bank is incorporated and organized and
that the welfare of the public or any banking institution or other
financial institution would not be jeopardized thereby;
(6) Revoke the certificate of authority, permit, certificate
or license of any state banking institution to engage in business
in this state if that institution fails or refuses to comply with
any order of the commissioner entered pursuant to the provisions of
paragraph (A) or (B), subdivision (15), subsection (c), section
four, article two of this chapter, or at the board's election to
direct the Commissioner to apply to any court having jurisdiction
for a prohibitory or mandatory injunction or other appropriate
remedy to compel obedience to such order;
(7) Suspend or remove a director, officer or employee of any
financial institution who is or becomes ineligible to hold that
position under any provision of law or rule and regulation or
order, or who willfully disregards or fails to comply with any
order of the board or commissioner made and entered in accordance
with the provisions of this chapter or who is dishonest or grossly
incompetent in the conduct of financial institution business and
prohibit that director, officer or employee from participating in
the affairs of any other financial institution until further order
of the board;
(8) To receive from state banking institutions applications to
establish branch banks by the purchase of the business and assets
and assumption of the liabilities of, or merger or consolidation
with, another banking institution or by the construction, lease or
acquisition of branch bank facilities in an unbanked area; examine
and investigate such applications, to hold hearings thereon on and
to approve or disapprove such those applications, all in accordance
with section twelve, article eight of this chapter;
(9) Approve or disapprove the application of any state bank to
purchase the business and assets and assume the liabilities of, or
merge or consolidate with, another state banking institution in
accordance with the provisions of section seven, article seven of
this chapter;
(10) Approve or disapprove the application of any state bank
to purchase the business and assets and assume the liabilities of
a national banking association, or merge or consolidate with a
national banking association to form a resulting state bank in
accordance with the provisions of section seven, article seven of
this chapter; and
(11) In addition to any authority granted pursuant to section
twelve, article eight of this chapter, incident to the approval of
an application pursuant to subdivisions (7) or (8) of this
subsection, permit the bank the application of which is so approved
to operate its banking business under its name from the premises of
the bank the business and assets of which have been purchased and
the liabilities of which have been assumed by such applicant bank or with which the applicant bank has merged or consolidated:
Provided, That this permission may be granted only if the board has
made the findings required by subsection (f), section three of this
article and such applicant bank has no common directors or officers
nor common ownership of stock exceeding ten percent of total
outstanding voting stock with the bank whose business and assets
are being purchased and liabilities assumed, or with whom the
applicant bank is being merged; and
(12) To receive an appeal from any party who is adversely
affected by an order of the Commissioner issued pursuant to section
twelve-d, article eight of this chapter and hold hearings in
accordance with the provisions of article five, chapter twenty-
nine-a of this code.
(c) A provision of this section may not be construed to alter,
reduce or modify the rights of shareholders, or obligations of a
banking institution in regard to its shareholders, as set forth in
section one hundred seventeen, article one, chapter thirty-one of
this code and section seven, article seven of this chapter, and
other applicable provisions of this code.
(d) Any order entered by the West Virginia Board of Banking
and Financial Institutions pursuant to this section is a matter of
public record.
(e) No later than July 1, 2010, the board shall propose for
legislative approval a rule requiring financial institutions
operating within this state to remit to the state seventy-five
percent of the amounts received from charging accounts for overdrafts, to fund the Workers' Lifetime Total Disability Fund,
created in article four-d, chapter twenty three of this code, and
the Supplemental Personal Needs Allowance Fund, created in article
four-f, chapter nine of this code.
NOTE: The purpose of this bill is to create the Workers'
Lifetime Total Disability Fund which operates to continue the
payment of workers' compensation permanent total disability
benefits to injured workers older than seventy years, to create the
Supplemental Personal Needs Allowance Fund which operates to
increase the monthly personal needs allowance for Medicaid
recipients who are residents of nursing homes or personal care
homes to $75 per month, and to fund both of these funds by
requiring financial institutions operating within the state to
remit to the state seventy-five percent of fees assessed against
accounts for overdraft.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.