H. B. 4171
(By Delegates Williams and Hubbard)
[Introduced January 26, 2000; referred to the
Committee on Political Subdivisions then Finance.]
A BILL to amend and reenact section twenty-three-a, article
twenty-two, chapter eight of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, relating to
providing a right of appeal to professional firefighters who
have had a request for disability benefits denied.
Be it enacted by the Legislature of West Virginia:
That section twenty-three-a, article twenty-two, chapter
eight of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted to read as
follows:
ARTICLE 22. RETIREMENT BENEFITS GENERALLY; POLICEMEN'S PENSION
AND RELIEF FUND; FIREMEN'S PENSION AND RELIEF
FUND; PENSION PLANS FOR EMPLOYEES OF WATERWORKS SYSTEM, SEWERAGE SYSTEM OR COMBINED WATERWORKS
AND SEWERAGE SYSTEM.
§8-22-23a. Eligibility for total and temporary disability
pensions and total and permanent disability
pensions.
(a) All members applying for total and temporary or total
and permanent disability benefits after the thirtieth day of
June, one thousand nine hundred eighty-one, shall be examined by
at least two physicians under the direction of the staff at
Marshall University, West Virginia University, Morgantown or West
Virginia University, Charleston:
Provided, That if
such the
member's medical condition cannot be agreed upon by two
such
physicians, a third physician shall examine
such the member.
Such The medical examination shall include the review of
such the
member's medical history. The expense of the member's
transportation to
such the medical examination and the expense of
the medical examination shall be paid by the board of trustees,
such the medical expense shall not exceed the reasonable and
customary charges for
such the services.
(b) Effective for members becoming eligible for total and
temporary disability benefits after the thirtieth day of June,
one thousand nine hundred eighty-one, initially or previously under this subsection allowance for initial or additional total
and temporary disability payments, the amount thereof to be
determined as specified in section twenty-four of this article,
shall be paid to
such the member during
such disability for a
period not exceeding twenty-six weeks if after a medical
examination in accordance with subsection (a) of this section,
of
this article two examining physicians report in writing to the
board of trustees that: (1)
such The member has become so
totally, physically or mentally disabled, from any reason, as to
render
such the member totally, physically or mentally,
incapacitated for employment as a police officer or firefighter;
and (2) it has not been determined if
such the disability is
permanent or it has been determined that
such the disability may
be alleviated or eliminated if
such the member follows a
reasonable medical treatment plan or reasonable medical advice:
Provided, That in any event a member is not eligible for total
and temporary disability payments following the fourth
consecutive twenty-six week period of total and temporary
disability unless
such the subsequent disability results from a
cause unrelated to the cause of the four previous periods of
total and temporary disability. During
such a two-year period of
such total and temporary disability,
such the department is
required to restore
such the member to his
or her former position
in
such the department at any time he
or she is determined to no
longer be disabled:
Provided, however, That the department may
refill, on a temporary basis, the position vacated by
such the
member after the first twenty-six weeks of his
or her temporary
disability.
(c) Effective for members becoming eligible for total and
permanent disability benefits initially under this subsection or
becoming eligible for total and temporary disability benefits
under subsection (b) of this section after the thirtieth day of
June, one thousand nine hundred eighty-one, allowance for total
and permanent disability payments, the amount thereof to be
determined as specified in section twenty-four of this article,
shall be paid to
such the member after a medical examination in
accordance with subsection (a) of this section, two examining
physicians report in writing to the board of trustees that
such
the member has become so totally, physically or mentally, and
permanently disabled, as a proximate result of service rendered
in the performance of his
or her duties in
such the department,
as to render
such the member totally, physically or mentally, and permanently incapacitated for employment as a police officer or
firefighter or, if such member has been a member of either of
such the departments for a period of not less than five
consecutive years preceding
such the disability,
such the member
has become so totally, physically or mentally, and permanently
disabled, from any reason other than service rendered in the
performance of his
or her duties in
such the department, as to
render
such the member totally, physically or mentally, and
permanently incapacitated for employment as a police officer or
firefighter. The phrase "totally, physically or mentally, and
permanently disabled" shall not be construed to include a medical
condition which may be corrected if
such the member follows a
reasonable medical treatment plan or reasonable medical advice.
(d) Effective for members becoming eligible for total and
temporary disability benefits after the thirtieth day of June,
one thousand nine hundred eighty-one under the provisions of
subsection (b) of this section, any payments for total and
temporary disability for a period during
such the disability not
exceeding twenty-six weeks shall cease at the end of
such
twenty-six week period under the following conditions:
(1)
Such The member fails to be examined as provided in subsection (a) of this section; or (2)
such the member is
examined or reexamined as provided in subsection (a)
of this
section and two examining physicians report to the board of
trustees that
such the member's medical condition does not meet
the requirements of subsection (b) or (c) of this section.
Effective for members becoming eligible for total and temporary
disability benefits after the thirtieth day of June, one thousand
nine hundred eighty-one, under subsection (b) of this section,
subsequent to
such the member's receipt of total and temporary
disability payments for a period of two years,
such the payments
shall cease at the end of
such a two-year period under the
following conditions: (A)
Such The member fails to be examined
as provided in subsection (a) of this section;
of this article or
(B)
such the member is examined or reexamined as provided in
subsection (a)
of this section and two examining physicians
report to the board of trustees that
such the member's medical
condition does not meet the requirements of subsection (c) of
this section.
(e) In the event the member is denied disability benefits
under this section, the member has an immediate right of appeal
to the circuit court of the county in which the municipality is located. Any appeal must be taken within ninety days from the
date of the member's receipt of notification of the board of
trustee's decision. Upon an appeal being taken and docketed with
the clerk of the circuit court of the county, the circuit court
shall proceed to hear the appeal upon the original record made
before the board and no other additional proof may be permitted
to be introduced.
NOTE: The purpose of this bill is to provide a right of
appeal to professional firefighters who have had a request for
disability benefits denied.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
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