Bill Text: WV HB3003 | 2018 | Regular Session | Introduced
Bill Title: Allocating disability or death benefits resulting from an occupational pneumoconiosis claim among the claimant’s employers on a proportional basis
Spectrum: Partisan Bill (Republican 6-0)
Status: (Introduced - Dead) 2018-01-10 - To House Judiciary [HB3003 Detail]
Download: West_Virginia-2018-HB3003-Introduced.html
WEST virginia Legislature
2017 regular session
By
[
to the Committee on the Judiciary.
A BILL to amend and
reenact §23-4-1 of the Code of West
Virginia, 1931, as amended, relating to requiring the Workers’ Compensation
Commission to allocate disability or death benefits resulting from an occupational
pneumoconiosis claim among the claimant’s employers on a proportional basis.
Be it enacted by the
Legislature of West Virginia:
That §23-4-1 of the
Code of West Virginia, 1931, as amended, be amended and reenacted to read as
follows:
ARTICLE 4. DISABILITY
AND DEATH BENEFITS.
§23-4-1. To whom compensation fund disbursed;
occupational pneumoconiosis and other occupational diseases included in "injury"
and "personal
injury";
definition of occupational pneumoconiosis and other occupational diseases;
rebuttable presumption for cardiovascular injury and disease or pulmonary
disease for firefighters.
(a) Subject to the
provisions and limitations elsewhere in this chapter, workers'
compensation benefits shall be paid the Workers' Compensation Fund, to the employees of employers subject
to this chapter who have received personal injuries in the course of and
resulting from their covered employment or to the dependents, if any, of the
employees in case death has ensued, according to the provisions hereinafter
made: Provided, That in the case of any employees of the state and its
political subdivisions, including: counties; municipalities; cities; towns; any
separate corporation or instrumentality established by one or more counties,
cities or towns as permitted by law; any corporation or instrumentality
supported in most part by counties, cities or towns; any public corporation
charged by law with the performance of a governmental function and whose
jurisdiction is coextensive with one or more counties, cities or towns; any
agency or organization established by the Department of Mental Health for the
provision of community health or mental retardation services and which is
supported, in whole or in part, by state, county or municipal funds; board,
agency, commission, department or spending unit, including any agency created
by rule of the Supreme Court of Appeals, who have received personal injuries in
the course of and resulting from their covered employment, the employees are
ineligible to receive compensation while the employees are at the same time and
for the same reason drawing sick leave benefits. The state employees may only
use sick leave for nonjob-related absences consistent with sick leave use and
may draw workers'
compensation benefits only where there is a job-related injury. This proviso
shall not apply to permanent benefits: Provided, however, That the
employees may collect sick leave benefits until receiving temporary total
disability benefits. The Division of Personnel shall promulgate rules pursuant
to article three, chapter twenty-nine-a of this code relating to use of sick
leave benefits by employees receiving personal injuries in the course of and
resulting from covered employment: Provided further, That in the event
an employee is injured in the course of and resulting from covered employment
and the injury results in lost time from work and the employee for whatever
reason uses or obtains sick leave benefits and subsequently receives temporary
total disability benefits for the same time period, the employee may be restored
sick leave time taken by him or her as a result of the compensable injury by
paying to his or her employer the temporary total disability benefits received
or an amount equal to the temporary total disability benefits received. The
employee shall be restored sick leave time on a day-for-day basis which
corresponds to temporary total disability benefits paid to the employer: And
provided further, That since the intent of this subsection is to prevent an
employee of the state or any of its political subdivisions from collecting both
temporary total disability benefits and sick leave benefits for the same time
period, nothing in this subsection prevents an employee of the state or any of
its political subdivisions from electing to receive either sick leave benefits
or temporary total disability benefits, but not both.
(b) For the purposes of
this chapter, the terms "injury"
and "personal
injury"
include occupational pneumoconiosis and any other occupational disease, as
hereinafter defined, and workers'
compensation benefits shall be paid to the employees of the employers in whose
employment the employees have been exposed to the hazards of occupational
pneumoconiosis or other occupational disease and in this state have contracted
occupational pneumoconiosis or other occupational disease, or have suffered a
perceptible aggravation of an existing pneumoconiosis or other occupational
disease, or to the dependents, if any, of the employees, in case death has
ensued, according to the provisions hereinafter made: Provided, That
compensation shall not be payable for the disease of occupational
pneumoconiosis, or death resulting from the disease, unless the employee has
been exposed to the hazards of occupational pneumoconiosis in the State of West
Virginia over a continuous period of not less than two years during the ten
years immediately preceding the date of his or her last exposure to such
hazards, or for any five of the fifteen years immediately preceding the date of
his or her last exposure. An application for benefits on account of
occupational pneumoconiosis shall set forth the name of the employer or
employers and the time worked for each. The commission may shall allocate
to and divide any charges resulting from such claim among the employers by whom
the claimant was employed for as much as sixty days during the period of three
years immediately preceding the date of last exposure to the hazards of
occupational pneumoconiosis. The allocation shall be based upon the time and
degree of exposure with each employer.
(c) For the purposes of
this chapter, disability or death resulting from occupational pneumoconiosis,
as defined in subsection (d) of this section, shall be treated and compensated
as an injury by accident.
(d) Occupational
pneumoconiosis is a disease of the lungs caused by the inhalation of minute
particles of dust over a period of time due to causes and conditions arising
out of and in the course of the employment. The term "occupational pneumoconiosis"
includes, but is not limited to, such diseases as silicosis, anthracosilicosis,
coal worker's
pneumoconiosis, commonly known as black lung or miner's asthma, silicotuberculosis
(silicosis accompanied by active tuberculosis of the lungs), coal worker's
pneumoconiosis accompanied by active tuberculosis of the lungs, asbestosis,
siderosis, anthrax and any and all other dust diseases of the lungs and
conditions and diseases caused by occupational pneumoconiosis which are not
specifically designated in this section meeting the definition of occupational
pneumoconiosis set forth in this subsection.
(e) In determining the
presence of occupational pneumoconiosis, X-ray evidence may be considered, but
shall not be accorded greater weight than any other type of evidence
demonstrating occupational pneumoconiosis.
(f) For the purposes of
this chapter, occupational disease means a disease incurred in the course of
and resulting from employment. No ordinary disease of life to which the general
public is exposed outside of the employment is compensable except when it
follows as an incident of occupational disease as defined in this chapter.
Except in the case of occupational pneumoconiosis, a disease shall be
considered to have been incurred in the course of or to have resulted from the
employment only if it is apparent to the rational mind, upon consideration of
all the circumstances: (1) That there is a direct causal connection between the
conditions under which work is performed and the occupational disease; (2) that
it can be seen to have followed as a natural incident of the work as a result
of the exposure occasioned by the nature of the employment; (3) that it can be
fairly traced to the employment as the proximate cause; (4) that it does not
come from a hazard to which workmen would have been equally exposed outside of
the employment; (5) that it is incidental to the character of the business and
not independent of the relation of employer and employee; and (6) that it
appears to have had its origin in a risk connected with the employment and to
have flowed from that source as a natural consequence, though it need not have
been foreseen or expected before its contraction: Provided, That
compensation shall not be payable for an occupational disease or death
resulting from the disease unless the employee has been exposed to the hazards
of the disease in the State of West Virginia over a continuous period that is
determined to be sufficient, by rule of the board of managers, for the disease
to have occurred in the course of and resulting from the employee's
employment. An application for benefits on account of an occupational disease
shall set forth the name of the employer or employers and the time worked for
each. The commission may allocate to and divide any charges resulting from such
claim among the employers by whom the claimant was employed. The allocation
shall be based upon the time and degree of exposure with each employer.
(g) No award shall be made
under the provisions of this chapter for any occupational disease contracted
prior to July 1, 1949. An employee shall be considered to have contracted an
occupational disease within the meaning of this subsection if the disease or
condition has developed to such an extent that it can be diagnosed as an
occupational disease.
(h) (1) For purposes of
this chapter, a rebuttable presumption that a professional firefighter who has
developed a cardiovascular or pulmonary disease or sustained a cardiovascular
injury has received an injury or contracted a disease arising out of and in the
course of his or her employment exists if: (i) The person has been actively
employed by a fire department as a professional firefighter for a minimum of
two years prior to the cardiovascular injury or onset of a cardiovascular or
pulmonary disease or death; and (ii) the injury or onset of the disease or
death occurred within six months of having participated in firefighting or a
training or drill exercise which actually involved firefighting. When the above
conditions are met, it shall be presumed that sufficient notice of the injury,
disease or death has been given and that the injury, disease or death was not
self- inflicted.
(2) The Insurance
Commissioner shall study the effects of the rebuttable presumptions created in
this subsection on the premiums charged for workers' compensation for professional
municipal firefighters; the probable effects of extending these presumptions to
volunteer firefighters; and the overall impact of the risk management programs,
wage replacement, premium calculation, the number of hours worked per
volunteer, treatment of nonactive or "social"
members of a volunteer crew and the feasibility of combining various volunteer
departments under a single policy on the availability and cost of providing
workers'
compensation coverage to volunteer firefighters. The Insurance Commissioner
shall file the report with the Joint Committee on Government and Finance no
later than December 1, 2008.
(i) Claims for occupational
disease as defined in subsection (f) of this section, except occupational
pneumoconiosis for all workers and pulmonary disease and cardiovascular injury
and disease for professional firefighters, shall be processed in like manner as
claims for all other personal injuries.
(j) On or before January 1,
2004, the Workers'
Compensation Commission shall adopt standards for the evaluation of claimants
and the determination of a claimant's degree of whole-body medical impairment in claims of
carpal tunnel syndrome.
NOTE: The purpose of this bill is
to require the Workers’ Compensation Commission to allocate disability or death
benefits resulting from an occupational pneumoconiosis claim among the
claimant’s employers on a proportional basis.
Strike-throughs indicate language
that would be stricken from a heading or the present law and underscoring indicates
new language that would be added.
