ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 4459
(By Delegates Caputo, Perdue, Fleischauer,
Butcher, Eldridge, Guthrie, Mahan, Longstreth,
Manchin, Marshall and Boggs
)
[Passed March 10, 2010; in effect ninety days from passage.]
AN ACT
to amend and reenact §23-4-10 and §23-4-15 of the Code of
West Virginia, 1931, as amended, all relating to Workers
Compensation death benefits where occupational pneumoconiosis
is determined to be a cause of death
; requiring notice of need
to file for certain death benefits; and increasing from one
year to two years the time in which a dependent may apply for
Workers Compensation death benefits where occupational
pneumoconiosis is determined to be a cause of death.
Be it enacted by the Legislature of West Virginia:
That §23-4-10 and §23-4-15 of the Code of West Virginia, 1931,
as amended, be amended and reenacted to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational pneumoconiosis or other occupational disease, suffered by an
employee in the course of and resulting from his or her employment,
causes death, and disability is continuous from the date of the
injury until the date of death, or if death results from
occupational pneumoconiosis or from any other occupational disease,
the benefits shall be in the amounts and to the persons as follows:
(a) If there are no dependents, the disbursements shall be
limited to the expense provided for in sections three and four of
this article;
(b) If there are dependents as defined in subdivision (d) of
this section, the dependents shall be paid for as long as their
dependency continues in the same amount that was paid or would have
been paid the deceased employee for total disability had he or she
lived. The order of preference of payment and length of dependence
shall be as follows:
(1) A dependent widow or widower until death or remarriage of
the widow or widower, and any child or children dependent upon the
decedent until each child reaches eighteen years of age or where
the child after reaching eighteen years of age continues as a
full-time student in an accredited high school, college,
university, business or trade school, until the child reaches the
age of twenty-five years, or if an invalid child, to continue as
long as the child remains an invalid. All persons are jointly
entitled to the amount of benefits payable as a result of
employee's death;
(2) A wholly dependent father or mother until death; and
(3) Any other wholly dependent person for a period of six
years after the death of the deceased employee;
(c) If the deceased employee leaves no wholly dependent
person, but there are partially dependent persons at the time of
death, the payment shall be fifty dollars a month to continue for
the portion of the period of six years after the death, determined
by the commission, successor to the commission, other private
carrier or self-insured employer, whichever is applicable, but no
partially dependent person shall receive compensation payments as
a result of the death of more than one employee.
Compensation under this subdivision and subdivision (b) of
this section shall, except as may be specifically provided to the
contrary in those subdivisions, cease upon the death of the
dependent, and the right to the compensation shall not vest in his
or her estate.
(d) "Dependent", as used in this chapter, means a widow,
widower, child under eighteen years of age, or under twenty-five
years of age when a full-time student as provided in this section,
invalid child or posthumous child, who, at the time of the injury
causing death, is dependent, in whole or in part, for his or her
support upon the earnings of the employee, stepchild under eighteen
years of age, or under twenty-five years of age when a full-time
student as provided in this section, child under eighteen years of
age legally adopted prior to the injury causing death, or under twenty-five years of age when a full-time student as provided in
this section, father, mother, grandfather or grandmother, who, at
the time of the injury causing death, is dependent, in whole or in
part, for his or her support upon the earnings of the employee; and
invalid brother or sister wholly dependent for his or her support
upon the earnings of the employee at the time of the injury causing
death; and
(e) If a person receiving permanent total disability benefits
dies from a cause other than a disabling injury leaving any
dependents as defined in subdivision (d) of this section, an award
shall be made to the dependents in an amount equal to one hundred
four times the weekly benefit the worker was receiving at the time
of his or her death and be paid either as a lump sum or in periodic
payments, at the option of the dependent or dependents.
(f) The Insurance Commissioner shall prescribe a form notice
to be sent by the commissioner, private carrier or self-insured
employer, as applicable, to the dependent with the first payment
and six months prior to the last payment of the benefits provided
in subsection (e) of this section, that advises the dependent that
the benefits will stop as of a date certain. The notice shall also
advise the dependent that he or she may be eligible for additional
benefits under section fifteen of this article and how to apply for
those benefits. The notices shall be written in plain English in
a manner that is easily understood by the general public.
§23-4-15. Application for benefits.
(a) To entitle any employee or dependent of a deceased
employee to compensation under this chapter, other than for
occupational pneumoconiosis or other occupational disease, the
application for compensation shall be made on the form or forms
prescribed by the Insurance Commissioner, and filed with the
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, within six months from and after the
injury or death, as the case may be, and unless filed within the
six months period, the right to compensation under this chapter is
forever barred, such time limitation being hereby declared to be a
condition of the right and hence jurisdictional, and all proofs of
dependency in fatal cases must also be filed with the commission
within six months from and after the death. In case the employee
is mentally or physically incapable of filing the application, it
may be filed by his or her attorney or by a member of his or her
family.
(b) To entitle any employee to compensation for occupational
pneumoconiosis under the provisions of this subsection, the
application for compensation shall be made on the form or forms
prescribed by the Insurance Commissioner, and filed with the
Insurance Commissioner, private carrier or self-insured employer,
whichever is applicable, within three years from and after the last
day of the last continuous period of sixty days or more during
which the employee was exposed to the hazards of occupational
pneumoconiosis or within three years from and after a diagnosed impairment due to occupational pneumoconiosis was made known to the
employee by a physician and unless filed within the three-year
period, the right to compensation under this chapter is forever
barred, such time limitation being hereby declared to be a
condition of the right and hence jurisdictional, or, in the case of
death, the application shall be filed by the dependent of the
employee within two years from and after the employee's death, and
such time limitation is a condition of the right and hence
jurisdictional.
(c) To entitle any employee to compensation for occupational
disease other than occupational pneumoconiosis under the provisions
of this section, the application for compensation shall be made on
the form or forms prescribed by the Insurance Commissioner, and
filed with the Insurance Commissioner, private carrier or self-
insured employer, whichever is applicable, within three years from
and after the day on which the employee was last exposed to the
particular occupational hazard involved or within three years from
and after the employee's occupational disease was made known to him
or her by a physician or which he or she should reasonably have
known, whichever last occurs, and unless filed within the three-
year period, the right to compensation under this chapter shall be
forever barred, such time limitation being hereby declared to be a
condition of the right and therefore jurisdictional, or, in case of
death, the application shall be filed as aforesaid by the dependent
of the employee within one year from and after the employee's death, and such time limitation is a condition of the right and
hence jurisdictional.