H. B. 2698
(By Delegates Huffman, Carper and Burk)
[Introduced March 24, 1993; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections six and nine, article four,
chapter twenty-three of the code of West Virginia, one
thousand nine hundred thirty-one, as amended; to further
amend said article four by adding thereto a new section,
designated section six-e; and to amend and reenact sections
one-c and one-j, article five of said chapter twenty-three,
all relating to workers' compensation; specifying that a
claimant shall not be entitled to a permanent total
disability award solely because the claimant has received
permanent partial disability awards totaling any certain
percent; relating to the evidentiary standards to be applied
in determining entitlement to a permanent total award made
after effective date of section; specifying that
compensation for permanent total disability shall be payable
only to claimant and not to his or her estate; providing a
new general standard for determining permanent total
disability; providing for offsets against permanent total
disability benefits of certain other benefits paid or
payable by the employer; requiring commissioner to
promulgate regulations relating to the offsets; restricting
entitlement to certain benefits in the event claimant
refuses certain reasonable employment or fails to cooperate
with rehabilitation plan; authorizing commissioner to make
modification in prior awards; and relating to notification
to commissioner or remand procedures if a permanent total
disability award is sought.
Be it enacted by the Legislature of West Virginia:
That sections six and nine, article four, chapter twenty-
three of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted; that said
article four be further amended by adding thereto a new section,
designated section six-e; and that sections one-c and one-j,
article five of said chapter be amended and reenacted, all to
read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-6. Classification of disability benefits.
Where compensation is due an employee under the provisions
of this chapter for personal injury, such 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 insection 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 July one, one thousand nine
hundred sixty-nine, forty-five percent; on or after July one, one
thousand nine hundred seventy, fifty percent; on or after July
one, one thousand nine hundred seventy-one, fifty-five percent;
on or after July one, one thousand nine hundred seventy-three,
sixty percent; on or after July one, one thousand nine hundred
seventy-four, eighty percent; on or after July one, 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 July one, one thousand nine hundred sixty-nine; not less
than thirty-five dollars per week for injuries occurring on or
after July one, one thousand nine hundred seventy-one; not less
than forty dollars per week for injuries occurring on or after
July one, one thousand nine hundred seventy-three; not less than
forty-five dollars per week for injuries occurring on or afterJuly one, one thousand nine hundred seventy-four; and for
injuries occurring on or after July one, 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.
(c) Subdivision (b) 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 be deemed 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 hence is entitled to has been granted a permanent
total disability award:
Provided,
That if any such claimant
thereafter sustains another compensable injury and has permanent
partial disability resulting therefrom, the permanent total
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 such the permanent total disabilitybenefit rate shall be paid from the second injury reserve created
by section one, article three of this chapter. In any claim in
which an award is made after the effective date of this section,
the employee shall not be entitled to a permanent total
disability award solely because the aggregate permanent partial
disability totals any certain percent; and the employee shall be
entitled to a permanent total disability award only if the
evidence, irrespective of the amount of permanent partial
disability, establishes that the employee is in fact permanently
and totally disabled as provided in 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 July one, one thousand nine
hundred sixty-nine, forty-five percent; on or after July one, one
thousand nine hundred seventy, fifty percent; on or after July
one, one thousand nine hundred seventy-one, fifty-five percent;
on or after July one, one thousand nine hundred seventy-three,
sixty percent; on or after July one, 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 abasis 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 such the
injury, the commissioner shall make such the award to claimant's
dependents as defined in this chapter, if any; such the payment
to be made in the same installments that would have been paid to
claimant if living:
Provided,
That no a payment shall not be
made to any surviving spouse of such the claimant after his or
her remarriage, and that this liability shall not accrue to the
estate of such the claimant and shall not be subject to any debts
of, or charges against, such 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 the award shall be paid to claimant's dependents
as defined in this chapter, if any; such the payment to be made
in the same installments that would have been paid to claimant ifliving:
Provided,
That no a payment shall not be made to any
surviving spouse of such the claimant after his or her
remarriage, and that this liability shall not accrue to the
estate of such the claimant and shall not be subject to any debts
of, or charges against, such the 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 undersubdivision (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 or permanent total, 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 the 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).
(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 Except for those permanent totaldisabilities specified in subdivision (m) of this section. The
condition of permanent total disability exists only when an
employee sustains one or more injuries or diseases received in
the course of and as a result of employment, that render the
employee unable to engage in any substantial gainful activity for
a prolonged period. "Substantial gainful activity" as used in
this section shall mean work that is within the employee's
capacity to perform or which could be within the employee's
capacity to perform through retraining or rehabilitation pursuant
to section nine of this article. "Substantial gainful activity"
as used in this section shall not be limited to jobs in the
employee's general field of employment. A permanent total
disability award, including a second injury life award pursuant
to section one, article three of this chapter, shall not be
granted if the employee is unable to prove injuries or diseases
that are totally and permanently disabling from causes other than
the normal aging process, where the employee is no longer in the
work force because of age or where the employee's age effectively
precludes employment, retraining or rehabilitation. In making
the determination of permanent total disability, the commissioner
or administrative law judge shall consider the credibility of the
witnesses, the qualifications of the experts, the basis for
expert opinions and generally accepted medical principles.
§23-4-6e. Reduction of permanent total disability benefits for
other benefits paid or payable.
The payment of permanent total disability or dependents'benefits under this chapter, including benefits payable from the
second injury reserve of the surplus fund pursuant to section
one, article three of this chapter, shall be reduced by the
following amounts:
(a) Fifty percent of the amount of old-age, retirement or
survivors benefits paid or payable to the employee or the
employee's dependents under the federal social security act;
(b) Benefits paid or payable under a disability insurance
plan, self-insurance plan or wage continuation plan provided by
the employer, to the extent and in the proportional amount that
the employee did not contribute directly to the plan; and
(c) The after-tax amount of any pension or retirement plan
paid by the employer, to the extent and in the proportional
amount that the employee did not contribute directly to the plan.
The commissioner shall promulgate legislative rules on or
before the first day of July, one thousand nine hundred ninety-
four, for the purpose of implementing this section, including
necessary notification provisions related to the receipt of or
entitlement to income or benefits referenced in this section.
§23-4-9. Physical and vocational rehabilitation.
(a) The Legislature hereby finds that it is a goal of the
workers' compensation program to assist workers to return to
suitable gainful employment after an injury. In order to
encourage workers to return to employment and to encourage and
assist employers in providing suitable employment to injured
employees, it shall be a priority of the commissioner to achieveearly identification of individuals likely to need rehabilitation
services and to assess the rehabilitation needs of these injured
employees. It shall be the goal of rehabilitation to return
injured workers to employment which shall be comparable in work
and pay to that which the individual performed prior to the
injury. If a return to comparable work is not possible, the goal
of rehabilitation shall be to return the individual to
alternative suitable employment, using all possible alternatives
of job modification, restructuring, reassignment and training, so
that the individual will return to productivity with his or her
employer or, if necessary, with another employer. The
Legislature further finds that it is the shared responsibility of
the employer, the employee, the physician and the commissioner to
cooperate in the development of a rehabilitation process designed
to promote reemployment for the injured employee. An employee
shall not be entitled to temporary total or permanent total
disability benefits if he or she has unjustifiably refused to
accept a bona fide offer of reasonable employment or has failed
to cooperate with a bona fide retraining or rehabilitation plan.
(b) In cases where an employee has sustained a permanent
disability, or has sustained an injury likely to result in
temporary disability in excess of one hundred twenty days, and
such the fact has been determined by the commissioner, the
commissioner shall at the earliest possible time determine
whether the employee would be assisted in returning to
remunerative employment with the provision of rehabilitationservices and if the commissioner determines that the employee
can be physically and vocationally rehabilitated and returned to
remunerative employment by the provision of rehabilitation
services including, but not limited to, vocational or on-the-job
training, counseling, assistance in obtaining appropriate
temporary or permanent work site, work duties or work hours
modification, by the provision of crutches, artificial limbs, or
other approved mechanical appliances, or medicines, medical,
surgical, dental or hospital treatment, the commissioner shall
forthwith develop a rehabilitation plan for the employee and,
after due notice to the employer, expend such an amount as may
be necessary for the aforesaid purposes:
Provided,
That such the
expenditure for vocational rehabilitation shall not exceed ten
thousand dollars for any one injured employee:
Provided,
however,
That no payment shall be made for such the vocational
rehabilitation purposes as provided in this section unless
authorized by the commissioner prior to the rendering of such the
physical or vocational rehabilitation, except that payments shall
be made for reasonable medical expenses without prior
authorization if sufficient evidence exists which would relate
the treatment to the injury and the attending physician or
physicians have requested authorization prior to the rendering
of such the treatment:
Provided further,
That payment for
physical rehabilitation, including the purchase of prosthetic
devices and other equipment and training in use of such the
devices and equipment, shall be considered expenses within themeaning of section three of this article and shall be subject to
the provisions of sections three, three-a, three-b and three-c of
this article. The provision of any rehabilitation services shall
be pursuant to a rehabilitation plan to be developed and
monitored by a rehabilitation professional for each injured
employee.
(c) In every case in which the commissioner shall order
physical or vocational rehabilitation of a claimant as provided
herein, the claimant shall, during the time he or she is
receiving any vocational rehabilitation or rehabilitative
treatment that renders him or her totally disabled during the
period thereof, be compensated on a temporary total disability
basis for such the period.
(d) In every case in which the claimant returns to gainful
employment as part of a rehabilitation plan, and the employee's
average weekly wage earnings are less than the average weekly
wage earnings earned by the injured employee at the time of the
injury, he or she shall receive temporary partial rehabilitation
benefits calculated as follows: The temporary partial
rehabilitation benefit shall be seventy percent of the difference
between the average weekly wage earnings earned at the time of
the injury and the average weekly wage earnings earned at the
new employment, both to be calculated as provided in sections
six, six-d and fourteen of this article as such the calculation
is performed for temporary total disability benefits, subject to
the following limitations: In no event shall such the benefitsbe subject to the minimum benefit amounts required by the
provisions of subdivision (b), section six of this article, nor
shall such the benefits exceed the temporary total disability
benefits to which the injured employee would be entitled pursuant
to sections six, six-d and fourteen of this article during any
period of temporary total disability resulting from the injury in
the claim:
Provided,
That no temporary total disability benefits
shall not be paid for any period for which temporary partial
rehabilitation benefits are paid. The amount of temporary
partial rehabilitation benefits payable under this subsection
shall be reviewed every ninety days to determine whether the
injured employee's average weekly wage in the new employment has
changed and, if such the change has occurred, the amount of
benefits payable hereunder shall be adjusted prospectively.
Temporary partial rehabilitation benefits shall only be payable
when the injured employee is receiving vocational rehabilitation
services in accordance with a rehabilitation plan developed under
this section.
(e) The commissioner shall promulgate legislative rules on
or before the first day of July, one thousand nine hundred
ninety-one, pursuant to the provisions of article three, chapter
twenty-nine-a of this code for the purpose of developing a
comprehensive rehabilitation program which will assist injured
workers to return to suitable gainful employment after an injury
in a manner consistent with the provisions and findings of this
section. Such The legislative rules shall provide definitionsfor rehabilitation facilities and rehabilitation services
pursuant to this section.
(f) The provisions of this section shall be terminated and
be of no further force or effect on the first day of July, one
thousand nine hundred ninety-four.
ARTICLE 5. REVIEW.
§23-5-1c. Application by employer or commissioner for
modification of award -- Objection to modification; hearing.
In any case wherein an employer makes application in writing
for a modification of any award previously made to an employee of
said employer, or upon the commissioner's own initiative for a
modification, based upon information received, irrespective of
the origin of said information and such the application or
information discloses cause for a further adjustment thereof, the
commissioner shall, after due notice to the employee and
employer, make such the modifications or changes with respect to
former findings or orders in such the form as may be justified,
and any party dissatisfied with any such modification or change
so made by the commissioner, shall upon proper and timely
objection, be entitled to a hearing as provided in section one or
section one-h of this article.
§23-5-1j. Requests for permanent total disability awards and
second injury life awards following objections to decisions
by the commissioner; remands or notification to the
commissioner; development of the record.
(a) If, following an objection to any decision of thecommissioner, any party to a claim pending before the office of
judges requests that a claimant be awarded a presents evidence of
permanent total disability award or entitlement to a second
injury life award or if and the administrative law judge on his
or her own motion believes that the record is incomplete on the
issue of whether a claimant should be issued a permanent total
disability award or a second injury life award, then the
administrative law judge shall either enter an order remanding
the claim to the commissioner, or shall notify the commissioner
of the claim and grant the commissioner a reasonable opportunity
to appear on behalf of the second injury reserve of the surplus
fund, or otherwise on behalf of the fund as provided in section
one-h of this article. An order directing that a claim be
remanded shall be interlocutory in nature and shall not be
appealable under section three of this article to the appeals
board created pursuant to section two of this article. Upon
remand, the commissioner may exercise the authority granted to
him or her by this chapter to determine whether or not the
claimant is entitled to a permanent total disability award or a
second injury life award:
Provided,
That either party may
present additional evidence for the commissioner to consider
during the remand proceedings. The commissioner shall act upon
any matter remanded to him or her pursuant to this section in a
speedy and timely manner and in no event longer than one hundred
twenty days shall only consider credible expert opinions
rendered based upon generally accepted medical principles andrelevant guidelines adopted by the health care advisory panel in
rendering a decision. Following the commissioner's decision, any
party to the claim may file an objection to the decision pursuant
to the other provisions of this article.
(b) During the pendency of the remand proceedings before the
commissioner, the original decision from which the objection was
taken shall remain in effect and action on the protest held in
abeyance pending the commissioner's action on the remand order.
Upon the entry of a decision on the issue of whether a permanent
total disability award or a second injury life award is to be
made, the claim shall be returned to the office of judges for
such the further proceedings as may be required on that first
objection. If a further objection is made pursuant to subsection
(a) of this section to the commissioner's decision on the issue
of whether a permanent total disability award or a second injury
life award is to be made, then such the proceedings on such the
objection shall be made part of the proceedings on the first
objection.
NOTE: This bill would amend the workers' compensation
statute in several significant respects. Specifically, the bill
would: Amend §23-4-6 so as to (1) specify that a claimant shall
not be entitled to a permanent total disability award solely
because the claimant has received permanent partial disability
awards totaling eighty-five percent or more, but shall be
entitled to a permanent total disability award only if the
evidence establishes that the claimant is in fact permanently and
totally disabled; (2) specify the permanent total disability
awards are payable only to the employee and not to his or her
estate; (3) establish a new standard for determining permanent
total disability, to be when an employee is unable to engage inany substantial gainful activity for a prolonged period; and (4)
define substantial gainful activity.
Add §23-4-6e so as to offset against permanent total
disability benefits certain other benefits paid or payable by the
employer.
Amend §23-4-9 so as to prohibit an employee from receiving
compensation if he or she has unjustifiably refused to accept a
bona fide offer of reasonable employment, or has failed to
cooperate with a bona fide retraining or rehabilitation plan.
Amend §23-5-1c so as to allow, upon commissioner's own
initiative, a modification of an award previously made.
Amend §23-5-1j so as to provide certain procedures to be
followed in determining whether a claimant is entitled to a
permanent total disability or second injury life award.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§23-4-6e is new; therefore, strike-throughs and underscoring
have been omitted.