Senate Bill No. 419
(By Senators Love, Prezioso, Caldwell, Hunger, Ross, Sharpe,
Oliverio, Minard, Fanning, Wooton and Helmick)
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[Introduced January 25, 2002; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend and reenact section one-d, article four, chapter
twenty-three of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, relating to providing
for cost-of-living increases for claimants receiving
permanent total disability awards.
Be it enacted by the Legislature of West Virginia:
That section one-d, 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.
§23-4-1d. Method and time of payments for permanent disability.
(a) If the division makes an award for permanent partial or
permanent total disability, the division or self-insured employer shall start payment of benefits by mailing or
delivering the amount due directly to the employee within
fifteen days from the date of the award:
Provided, That the
division may withhold payment of the portion of the award that
is the subject of the following subsection until seventy-seven
days have expired without an objection being filed.
(b) On and after the first day of July, one thousand nine
hundred ninety-five, whenever the division, the office of judges
or the workers' compensation appeal board enters an order
granting the claimant a permanent total disability award and an
objection or appeal is then filed by the employer or the
division, the division shall begin the payment of monthly
permanent total disability benefits. However, any payment for
a back period of benefits from the onset date of total permanent
disability to the date of the award shall be limited to a period
of twelve months of benefits. If, after all litigation is
completed and the time for the filing of any further objections
or appeals to the award has expired, the award of permanent
total disability benefits is upheld, then the claimant shall
receive the remainder of benefits due to him or her based upon
the onset date of total permanent disability that was finally
determined.
(c) If the claimant is then owed any additional payment of back permanent total disability benefits, then the division
shall not only pay the claimant the sum owed but shall also add
thereto interest at the simple rate of six percent per annum
from the date of the initial award granting the total permanent
disability to the date of the final order upholding the award.
In the event that an intermediate order directed an earlier
onset date of permanent total disability than was found in the
initial award, the interest earning period for that additional
period shall begin upon the date of the intermediate award. Any
interest payable shall be charged to the account of the employer
or shall be paid by the employer if it has elected to carry its
own risk.
(d) In addition to the interest provided in subsection (c)
of this section, the division shall calculate cost of living
increases based on the consumer price index and shall adjust
permanent total disability payments, accordingly, on an annual
basis. The commissioner shall propose legislative rules in
accordance with article three, chapter twenty-nine-a of this
code designed to implement the purpose of this subsection.
(d) (e) If a timely protest to the award is filed, as
provided in section one or nine, article five of this chapter,
the division or self-insured employer shall continue to pay to
the claimant such benefits during the period of such disability unless it is subsequently found that the claimant was not
entitled to receive the benefits, or any part thereof, so paid,
in which event the division shall, where the employer is a
subscriber to the fund, credit said employer's account with the
amount of the overpayment; and, where the employer has elected
to carry the employer's own risk, the division 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 division to the surplus fund created by section
one, article three of this chapter. If the final decision in
any case determines that a claimant was not lawfully entitled to
benefits paid to him or her pursuant to a prior decision, such
amount of benefits so paid shall be deemed overpaid. The
division may only recover such amount by withholding, in whole
or in part, as determined by the division, 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.
NOTE: The purpose of this bill is to adjust permanent total
disability payments for cost of living increases.
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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