Senate Bill No. 410
(By Senators Burdette, Mr. President, and Boley
By Request of the Executive)
____________
[Introduced February 21, 1994;
referred to the Committee on the Judiciary.]
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A BILL to repeal section four-b, article five, chapter twenty-
three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections one-c, six, six-d, seven-b, nine and fourteen,
article four of said chapter, all relating to workers'
compensation; obtaining of wage information; correcting
reference to unemployment compensation division; minimum
level of temporary total disability benefits; the
information to be used in determining wages; extending the
termination provisions related to trial return to work and
to the vocational rehabilitation program; removing the
expired time period for the adoption of legislative rules;
and repealing the requirement that certain jurisdictional
decisions be appealed directly to the appeal board.
Be it enacted by the Legislature of West Virginia:
That section four-b, article five, chapter twenty-three ofthe code of West Virginia, one thousand nine hundred thirty-one,
as amended, be repealed; and that sections one-c, six, six-d,
seven-b, nine and fourteen, article four of said chapter be
amended and reenacted, all to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1c. Payment of temporary total disability benefits
directly to claimant; payment of medical benefits; payments
of benefits during protest; right of commissioner to collect
payments improperly made.
(a) In any claim for benefits under this chapter, the
commissioner shall determine whether the claimant has sustained
a compensable injury within the meaning of section one of this
article and he shall enter an order giving all parties immediate
notice of such decision. Any party shall have the right to
protest the order of the commissioner and obtain an evidentiary
hearing as provided in section one, article five of this chapter.
(b) Where it appears from the employer's report, or from
proper medical evidence, that a compensable injury will result in
a disability which will last longer than three days as provided
in section five of this article, the commissioner may immediately
enter an order commencing the payment of temporary total
disability benefits to the claimant in the amounts provided for
in sections six and fourteen of this payment of the expenses
provided for in subdivision (a), section three of this article,
relating to said injury, without waiting for the expiration of
the thirty-day period during which objections may be filed tosuch findings as provided in section one, article five of this
chapter. The commissioner shall enter an order commencing the
payment of temporary total disability or medical benefits within
fifteen days of receipt of either the employee's or employer's
report of injury, whichever is received sooner, and also upon
receipt of either a proper physician's report or any other
information necessary for a determination. The commissioner
shall give to the parties immediate notice of any order granting
temporary total disability or medical benefits.
(c) The commissioner may enter orders granting temporary
total disability benefits upon receipt of medical evidence
justifying the payment of such benefits. In no claim shall the
commissioner enter an order granting prospective temporary total
disability benefits for a period of more than ninety days:
Provided, That when the commissioner determines that the claimant
remains disabled beyond the period specified in the prior order
granting temporary total disability benefits, the commissioner
shall enter an order continuing the payment of temporary total
disability benefits for an additional period not to exceed ninety
days, and shall give immediate notice to all parties of such
decision.
(d) Upon receipt of the first report of injury in claim, the
commissioner shall request from the employer or employers any
wage information necessary for determining the rate of benefits
to which the employee is entitled. If an employer does not
furnish the commissioner with this information within fifteendays from the date the commissioner received the first report of
injury in the case, the employee shall be paid temporary total
disability benefits for lost time at the rate the commissioner
obtains from reports made to him or her pursuant to section
eleven, article ten, chapter twenty-one-a of this code. If no
such wages have been reported, then the commissioner shall make
such payments at the rate he or she believes would be justified
by the usual rate of pay for the occupation of the injured
employee. The commissioner shall adjust the rate of benefits
both retroactively and prospectively upon receipt of proper wage
information. The commissioner shall have access to all wage
information in the possession of any state agency, including wage
information received by the unemployment compensation division
under said chapter, pertinent to such determination.
(e) Upon a finding of the commissioner that a claimant who
has sustained a previous compensable injury which has been closed
by any order of the commissioner, or by the claimant's return to
work, suffers further temporary total disability or requires
further medical or hospital treatment resulting from the
compensable injury, the commissioner shall immediately enter an
order commencing the payment of temporary total disability
benefits to the claimant in the amount provided for in sections
six and fourteen of this article, and the expenses provided for
in subdivision (a), section three of this article, relating to
said disability, without waiting for the expiration of the
thirty-day period during which objections may be filed to suchfindings as provided in section one, article five of this
chapter. The commissioner shall give immediate notice to the
parties of his order.
(f) Where the employer is a subscriber to the workers'
compensation fund under the provisions of article three of this
chapter, and upon the findings aforesaid, the commissioner shall
mail all workers' compensation checks paying temporary total
disability benefits directly to the claimant and not to the
employer for delivery to the claimant.
(g) Where the employer has elected to carry his own risk
under section nine, article two of this chapter, and upon the
findings aforesaid, the commissioner shall immediately issue a
pay order directing the employer to pay such amounts as are due
the claimant for temporary total disability benefits. A copy of
the order shall be sent to the claimant. The self-insured
employer shall commence such payments by mailing or delivering
the payments directly to the employee within ten days of the date
of the receipt of the pay order by the employer. If the self-
insured employer believes that his employee is entitled to
benefits, he may start payments before receiving a pay order from
the commissioner.
(h) In the event that an employer files a timely objection
to any order of the commissioner with respect to compensability,
or any order denying an application for modification with respect
to temporary total disability benefits, or with respect to those
expenses outlined in subdivision (a), section three of thisarticle, the commissioner shall continue to pay to the claimant
such benefits and expenses during the period of such disability.
Where it is subsequently found by the commissioner that the
claimant was not entitled to receive such temporary total
disability benefits or expenses, or any part thereof, so paid,
the commissioner shall, when the employer is a subscriber to the
fund, credit said employer's account with the amount of the
overpayment; and, when the employer has elected to carry its own
risk, the commissioner shall refund to such employer the amount
of the overpayment. The amounts so credited to a subscriber or
repaid to a self insurer shall be charged by the commissioner to
the surplus fund created in section one, article three of this
chapter.
(i) When the employer has protested the compensability or
applied for modification of a temporary total disability benefit
award or expenses and the final decision in such case determines
that the claimant was not entitled to such benefits or expenses,
the amount of such benefits or expenses shall be considered
overpaid. The commissioner may only recover the amount of such
benefits or expenses by withholding, in whole or in part, as
determined by the commissioner, future permanent partial
disability benefits payable to the individual in the same or
other claims and credit such amount against the overpayment until
it is repaid in full.
(j) In the event that the commissioner finds that based upon
the employer's report of injury, the claim is not compensable,the commissioner shall provide a copy of such employer's report
in addition to the order denying the claim.
§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, sixtypercent; 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 such
minimum weekly benefits exceed the level of benefits determined
by use of the then 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 themaximum 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 totaldisability 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 such injury,the commissioner shall make such award 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 such claimant after his or her remarriage, and that
this liability shall not accrue to the estate of such claimant
and shall not be subject to any debts of, or charges against,
such 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 such claimant after his or her remarriage, and that
this liability shall not accrue to the estate of such 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.
§23-4-6d. Benefits payable to part-time employees.
(a) For purposes of this section, a part-time employee means
an employee who, at the date of injury, is customarily employed
twenty-five hours per week or less on a regular basis and is
classified by the employer as a part-time employee:
Provided,
That the term "part-time employee" shall not include an employee
who regularly works more than twenty-five hours per week for the
employer, nor shall it include an employee who regularly works
for more than one employer and whose regular combined workinghours total more than twenty-five hours per week when that
employee is rendered unable to perform the duties of all such
employment as a result of the injury, nor shall it include any
employee in the construction industry who works less than twenty-
five hours per week.
(b) For purposes of establishing temporary total disability
weekly benefits pursuant to subdivision (b), section six of this
article for part-time employees, the "average weekly wage
earnings, wherever earned, of the injured person, at the date of
injury", shall be computed:
(1) Until the first day of July, one thousand nine hundred
ninety-four, based upon the average gross pay, wherever earned,
which is received by the employee during the two months, six
months or twelve months immediately preceding the date of the
injury, whichever is most favorable to the injured employee; or
(2) On and after the first day of July, one thousand nine
hundred ninety-four, based upon the best average weekly gross
pay, wherever earned, which is received by the employee during
the best quarter of wages out of the preceding four quarters of
wages as reported to the commissioner pursuant to section eleven,
article ten, chapter twenty-one-a of this code:
Provided,
That
for part-time employees who have been employed less than two
months but more than one week prior to the date of injury or any
employee whose wages have not yet been reported to the
commissioner, the average weekly wage earnings shall be
calculated based upon the average gross earnings in the weeksactually worked:
Provided, however,
That for part-time employees
who have been employed one week or less, the average weekly wage
earnings shall be calculated based upon the average weekly wage
prevailing for the same or similar part-time employment at the
time of injury except that when an employer has agreed to pay a
certain hourly wage to such part-time employee, the average
weekly wage shall be computed by multiplying such hourly wage by
the regular numbers of hours contracted to be worked each week:
Provided further,
That notwithstanding any provision of this
article to the contrary, no part-time employee shall receive
temporary total disability benefits greater than his or her
average weekly wage earnings as so calculated.
(c) Notwithstanding any other provisions of this article to
the contrary, benefits payable to a part-time injured employee
for any permanent disability shall be computed and paid on the
same basis as if the injured employee is not a part-time employee
within the meaning of this section.
§23-4-7b. Trial return to work.
(a) The Legislature hereby finds and declares that it is in
the interest of employees, employers and the commissioner that
injured employees be encouraged to return to work as quickly as
possible after an injury and that appropriate protections be
afforded to injured employees who return to work on a trial
basis.
(b) Notwithstanding any other provisions of this chapter to
the contrary, the injured employee shall not have his or hereligibility to receive temporary total disability benefits
terminated when he or she returns to work on a trial basis as set
forth herein. An employee shall be eligible to return to work on
a trial basis when he or she is released to work on a trial basis
by the treating physician.
(c) When an injured employee returns to work on a trial
basis, the employer shall provide a trial return to work
notification to the commissioner. Upon receipt thereof, the
commissioner shall note the date of the first day of work
pursuant to the trial return and shall continue the claimant's
eligibility for temporary total disability benefits, but shall
temporarily suspend the payment of temporary total disability
benefits during the period actually worked by the injured
employee. The claim shall be closed on a temporary total
disability basis either when the injured employee or the
authorized treating physician notifies the commissioner that the
injured employee is able to perform his or her job or
automatically at the end of a period of three months from the
date of the first day of work unless the employee notifies the
commissioner that he or she is unable to perform the duties of
the job, whichever occurs first. If the injured employee is
unable to continue working due to the compensable injury for a
three-month period, the injured employee shall notify the
commissioner and temporary total disability benefits shall be
reinstated immediately and he or she shall be referred for a
rehabilitation evaluation as provided in section nine of thisarticle. No provision of this section shall be construed to
prohibit the commissioner from referring the injured employee for
any permanent disability evaluation required or permitted by any
other provision of this article.
(d) Nothing in this section shall prevent the employee from
returning to work without a trial return to work period.
(e) Nothing in this section shall be construed to require an
injured employee to return to work on a trial basis.
(f) The provisions of this section shall be terminated and
be of no further force and effect on the first day of July, one
thousand nine hundred ninety-eight.
§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 achieve
early 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 alternativesof 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.
(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 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 rehabilitation
services 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 suchexpenditure for vocational rehabilitation shall not exceed ten
thousand dollars for any one injured employee:
Provided,
however,
That no payment shall be made for such vocational
rehabilitation purposes as provided in this section unless
authorized by the commissioner prior to the rendering of such
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 treatment:
Provided further,
That payment for physical
rehabilitation, including the purchase of prosthetic devices and
other equipment and training in use of such devices and
equipment, shall be considered expenses within the meaning 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 disabilitybasis for such 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 calculation is
performed for temporary total disability benefits, subject to the
following limitations: In no event shall such benefits be
subject to the minimum benefit amounts required by the provisions
of subdivision (b), section six of this article, nor shall such
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 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 changedand, if such 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 rules 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 rules shall provide definitions
for 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-eight.
§23-4-14. Computation of benefits.
(a) The average weekly wage earnings, wherever earned, of
the injured person at the date of injury, and the average weekly
wage in West Virginia as determined by the commissioner, in
effect at the date of injury, shall be taken as the basis upon
which to compute the benefits.
(1) In cases involving occupational pneumoconiosis or other
occupational diseases, the "date of injury" shall be the date of
the last exposure to the hazards of occupational pneumoconiosis
or other occupational diseases.
(2) In computing benefits payable on account of occupational
pneumoconiosis, the commissioner shall deduct the amount of all
prior workers' compensation benefits paid to the same claimant on
account of silicosis, but a prior silicosis award shall not, in
any event, preclude an award for occupational pneumoconiosis
otherwise payable under this article.
(b) (1) Until the first day of July, one thousand nine
hundred ninety-four, the expression "average weekly wage
earnings, wherever earned, of the injured person, at the date of
injury", within the meaning of this chapter, shall be computed
based upon the daily rate of pay at the time of the injury or
upon the average pay received during the two months, six months
or twelve months immediately preceding the date of the injury,
whichever is most favorable to the injured employee, 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.
(2) On and after the first day of July, one thousand nine
hundred ninety-four, the expression "average weekly wage
earnings, wherever earned, of the injured person, at the date of
injury", within the meaning of this chapter, shall be computed
based upon the daily rate of pay at the time of the injury or
upon the weekly average derived from the best quarter of wages
out of the preceding four quarters of wages as reported to the
commissioner pursuant to section eleven, article ten, chapter
twenty-one-a of this code, whichever is most favorable to theinjured employee, 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.
(c) The expression "average weekly wage in West Virginia",
within the meaning of this chapter, shall be the average weekly
wage in West Virginia as determined by the commissioner in
accordance with the provisions of sections ten and eleven,
article six, chapter twenty-one-a of this code, and other
applicable provisions of said chapter.
(d) In any claim for injuries, including occupational
pneumoconiosis and other occupational diseases, occurring on or
after the first day of July, one thousand nine hundred seventy-
one, any award for temporary total, permanent partial or
permanent total disability benefits or for dependent benefits,
shall be paid at the weekly rates or in the monthly amount in the
case of dependent benefits applicable to the claimant therein in
effect on the date of such injury. If during the life of such
award for temporary total, permanent partial or permanent total
disability benefits or for dependent benefits, the weekly rates
or the monthly amount in the case of dependent benefits are
increased or decreased, the claimant shall receive such increased
or decreased benefits beginning as of the effective date of said
increase or decrease.
__________
(NOTE: This bill repeals an obsolete provision requiring
that certain jurisdictional rulings be appealed directly to the
appeals board rather than to the office of judges. In addition,it extends the termination provisions of the sections pertaining
to trial return to work and vocational rehabilitation for four
(4) additional years. Further, the expired time period in which
vocational rehabilitation legislative rules were to have been
promulgated is eliminated. The bill limits the amount of
temporary total disability benefits so that the minimum level of
benefits does not exceed the federal minimum wage. In addition,
the bill changes the methodology for calculating a claimant's
average weekly wage by permitting the use of wage reports made to
the unemployment compensation division.)
________
JUDICIARY COMMITTEE AMENDMENTS
The Committee on the Judiciary moved to amend the bill on
page ___, section six, line ___, after the word "wage" by
inserting a colon and the following proviso:
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.
And,
On page one, by striking out the title and substituting
therefor a new title, to read as follows:
Eng. Senate Bill No. 410--A Bill to repeal section four-b,
article five, chapter twenty-three of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to amend
and reenact sections one-c, six, six-d, seven-b, nine and
fourteen, article four of said chapter, all relating to workers'
compensation; obtaining of wage information; correcting referenceto unemployment compensation division; minimum level of temporary
total disability benefits; exceptions; the information to be used
in determining wages; extending the termination provisions
related to trial return to work and to the vocational
rehabilitation program; removing the expired time period for the
adoption of legislative rules; and repealing the requirement that
certain jurisdictional decisions be appealed directly to the
appeal board.
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