H. B. 2023
(By Delegate Linch)
[Introduced February 12, 1997; referred to the
Committee on Finance then the Judiciary.]
A BILL to amend and reenact section six, article four, chapter
twenty-three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to workers'
compensation disability and death benefits; classification
of and criteria for disability benefits; and restoring
section six to the language it contained before the
amendment to that section in the year one thousand nine
hundred ninety-five.
Be it enacted by the Legislature of West Virginia:
That section six, article four, chapter twenty-three of the
code of West Virginia, one thousand nine hundred thirty-one, 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 expressions "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,
shall 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) If the injury causes temporary total disability, the
employee shall receive during the continuance thereof weekly
benefits as follows: A maximum weekly benefit to be computed on
the basis of seventy percent of the average weekly wage earnings,
wherever earned, of the injured employee, at the date of injury,
not to exceed the percentage of the average weekly wage in West
Virginia, as follows: On or after the first day of July, one
thousand nine hundred sixty-nine, forty-five percent; on or after
the first day of July, one thousand nine hundred seventy, fifty
percent; on or after the first day of July, one thousand nine
hundred seventy-one, fifty-five percent; on or after the first
day of July, one thousand nine hundred seventy-three, sixty percent; on or after the first day of July, one thousand nine
hundred seventy-four, eighty percent; on or after the first day
of July, one thousand nine hundred seventy-five, one hundred
percent.
The minimum weekly benefits paid hereunder shall not be less
than twenty-six dollars per week for injuries occurring on or
after the first day of July, one thousand nine hundred sixty- nine; not less than thirty-five dollars per week for injuries
occurring on or after the first day of July, one thousand nine
hundred seventy-one; not less than forty dollars per week for
injuries occurring on or after the first day of July, one
thousand nine hundred seventy-three; not less than forty-five
dollars per week for injuries occurring on or after the first day
of July, one thousand nine hundred seventy-four; and for injuries
occurring on or after the first day of July, one thousand nine
hundred seventy-six, thirty-three and one-third percent of the
average weekly wage in West Virginia, except as provided in
section six-d of this article. In no event, however, shall
minimum weekly benefits exceed the level of benefits determined
by use of the then applicable federal minimum hourly wage:
Provided, That any claimant receiving permanent total disability
benefits, permanent partial disability benefits or dependents'
benefits prior to the first day of July, one thousand nine hundred ninety-four, shall not have his or her benefits reduced
based upon the requirement herein that the minimum weekly benefit
shall not exceed the applicable federal minimum hourly wage.
(c) Subdivision (b) of this section shall be limited as
follows: Aggregate award for a single injury causing temporary
disability shall be for a period not exceeding two hundred eight
weeks.
(d) If the injury causes permanent total disability,
benefits shall be payable during the remainder of life at the
maximum or minimum weekly benefits as provided in subdivision (b)
of this section for temporary total disability. A permanent
disability of eighty-five percent or more shall entitle the
employee to a rebuttable presumption of a permanent total
disability for the purpose of this section. Under no
circumstances shall the commissioner grant an additional
permanent disability award to a claimant receiving a permanent
total disability award, or to a claimant who has previously been
granted permanent disability awards totaling eighty-five percent
or more and has been granted a permanent total disability award:
Provided, That if any claimant thereafter sustains another
compensable injury and has permanent partial disability resulting
therefrom, the total permanent disability award benefit rate
shall be computed at the highest benefit rate justified by any of the compensable injuries, and the cost of any increase in the
permanent total disability benefit rate shall be paid from the
second injury reserve created by section one, article three of
this chapter. In any claim in which a claimant aggregates
permanent partial disability awards in the amount of eighty-five
percent or more after the effective date of this subsection, the
claimant shall be entitled to a permanent total disability award
unless the evidence establishes that the claimant is not
permanently and totally disabled pursuant to subdivision (n) of
this section.
(e) 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 following maximum or minimum benefit rates:
Seventy percent of the average weekly wage earnings, wherever
earned, of the injured employee, at the date of injury, not to
exceed the percentage of the average weekly wage in West
Virginia, as follows: On or after the first day of July, one
thousand nine hundred sixty-nine, forty-five percent; on or after
the first day of July, one thousand nine hundred seventy, fifty
percent; on or after the first day of July, one thousand nine
hundred seventy-one, fifty-five percent; on or after the first day of July, one thousand nine hundred seventy-three, sixty
percent; on or after the first day of July, one thousand nine
hundred seventy-five, sixty-six and two-thirds percent.
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 commissioner, with the
following table establishing the minimum percentage of
disability. In determining the percentage of disability, the
commissioner may be guided by, but shall not be limited to, the
disabilities enumerated in the following table, and in no event
shall the disability be less than that 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 finger shall be considered a
thirty-two percent disability.
The loss of index and middle finger shall be considered a
twenty percent disability.
The loss of middle and ring finger shall be considered a
fifteen percent disability.
The loss of ring and little finger shall be considered a ten
percent disability.
The loss of thumb, index and middle finger shall be
considered a forty percent disability.
The loss of index, middle and ring finger shall be
considered a thirty percent disability.
The loss of middle, ring and little finger 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 commissioner, 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 commissioner,
using as a basis the total loss of hearing in both ears.
Should a claimant sustain a compensable injury which results
in the total loss by severance of any of the bodily members named
in this subdivision, die from sickness or noncompensable injury before the commissioner makes the proper award for the injury,
the commissioner shall make the award to claimant's dependents
as defined in this chapter, if any; 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
shall not be subject to any debts of, or charges against, the
estate.
(g) Should a claimant to whom has been made a permanent
partial award of from one percent to eighty-four percent, both
inclusive, die from sickness or noncompensable injury, the unpaid
balance of such award shall be paid to claimant's dependents as
defined in this chapter, if any; such 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
shall not be subject to any debts of, or charges against, such
estate.
(h) For the purposes of this chapter, a finding of the
occupational pneumoconiosis board shall have the force and effect
of an award.
(i) The award for permanent disabilities intermediate to
those fixed by the foregoing schedule and permanent disability of
from one percent to eighty-four percent shall be the same
proportion and shall be computed and allowed by the commissioner.
(j) The percentage of all permanent disabilities other than
those enumerated in subdivision (f) of this section shall be
determined by the commissioner, and awards made in accordance
with the provisions of subdivision (d) or (e) of this section.
Where there has been an injury to a member as distinguished from
total loss by severance of that member, the commissioner in
determining the percentage of disability may be guided by, but
shall not be limited to, the disabilities enumerated in
subdivision (f) of this section.
(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 thereto 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 such injured employee if there be such 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.
In all other cases permanent disability shall be determined
by the commissioner in accordance with the facts in the case and
award made in accordance with the provisions of subdivision (d)
or (e) of this section.
(n) A disability which renders the injured employee unable
to engage in substantial gainful activity requiring skills or
abilities 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. In addition, the vocational standards
adopted pursuant to subsection (m), section seven, article three,
chapter twenty-one-a of this code shall be considered once they are effective.
NOTE: The purpose of this bill is to restore §23-4-6 to the
language it contained before the amendment to that section by S.
B. 250 in 1995.
This section has been completely rewritten; therefore,
strike-throughs and underscoring have been omitted.
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