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.