H. B. 2026
(By Delegate Linch)
[Introduced February 12, 1997; referred to the
Committee on Finance then the Judiciary.]
A BILL to amend and reenact section ten, article four, chapter twenty-three of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, relating to workers'
compensation death benefits; setting forth classifications
of death benefits; defining "dependent"; and providing
lump-sum dependents' benefits equal to one hundred and four
times the weekly benefit payable to a deceased employee who
received permanent total disability benefits during his or
her lifetime and who dies from a cause other than a
disabling injury.
Be it enacted by the Legislature of West Virginia:
That section ten, 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.
§23-4-10. Classification of death benefits; "dependent" defined.
In case a personal injury, other than occupational
pneumoconiosis or other occupational disease, suffered by an
employee in the course of and resulting from his or her
employment, causes death, and disability is continuous from date
of such that injury until date of death, or if death results from
occupational pneumoconiosis or from any other occupational
disease, the benefits shall be in the amounts and to the persons
as follows:
(a) If there be no dependents, the disbursements shall be
limited to the expense provided for in sections three and four of
this article.
(b) If there be dependents as defined in subdivision (d) of
this section, such those dependents shall be paid for as long as
their dependency shall continue in the same amount as was paid or
would have been paid the deceased employee for total disability
had he or she lived. The order of preference of payment and
length of dependence shall be as follows:
(1) A dependent widow or widower until his or her death or
remarriage, of such widow or widower, and any child or children
dependent upon the decedent until each such a dependent child
shall reach reaches eighteen years of age or, where such child,
after reaching eighteen years of age, continues as a full-time
student in an accredited high school, college, university, business or trade school, until such that child reaches the age
of twenty-five years or if an invalid child to continue as long
as such the child remains an invalid. All such dependent persons
shall be jointly entitled to the amount of benefits payable as a
result of the employee's death.
(2) A wholly dependent father or mother until death.
(3) Any other wholly dependent person for a period of six
years after the death of the deceased employee.
(c) If the deceased employee leaves no wholly dependent
person, but there are partially dependent persons at the time of
death, the payment shall be fifty dollars a month, to continue
for such a portion of the period of six years after the death, as
the division may determine: but no such Provided, That no
partially dependent person shall may receive compensation
payments as a result of the death of more than one employee.
Compensation under subdivisions (b) and (c) hereof shall,
except as may be specifically provided to the contrary therein,
cease upon the death of the dependent, and the right thereto
shall not vest in his or her estate.
(d) "Dependent", as used in this chapter, shall mean means
a widow, widower, child under eighteen years of age, or under
twenty-five years of age when a full-time student as provided
herein, invalid child or posthumous child, who, at the time of
the injury causing death, is dependent in whole or part for his or her support upon the earnings of the employee, stepchild under
eighteen years of age, or under twenty-five years of age when a
full-time student as provided herein, child under eighteen years
of age legally adopted prior to the injury causing death, or
under twenty-five years of age when a full-time student as
provided herein, father, mother, grandfather or grandmother, who
at the time of the injury causing death, is dependent in whole or
in part for his or her support upon the earnings of the employee;
and invalid brother or sister wholly dependent for his or her
support upon the earnings of the employee at the time of the
injury causing death.
(e) (1) If a person receiving permanent total disability
benefits which were awarded prior to the second day of February,
one thousand nine hundred ninety-five, dies from a cause other
than a disabling injury leaving any dependents as defined in
subdivision (d) of this section, an award a lump sum payment
shall be made to such his or her dependents in an amount equal to
one hundred four times the weekly benefit the worker employee was
receiving at the time of his or her death. The award shall be
paid to the dependents in the same interval at which the decedent
had been receiving benefits prior to his or her death.
(2) On and after the second day of February, one thousand
nine hundred ninety-five, when an award of permanent total
disability benefits is made, a claimant shall make a one-time election of whether to receive the full amount of payments for
the award or to receive a reduced payment in order to provide an
annuity payment to his or her dependents. The sum of twenty
thousand dollars shall be the initial amount of the annuity.
Thereafter, the compensation programs performance council shall
review the annuity amount at least every three years. The
council shall also from time to time determine the amount of the
reduction in benefits that will be used to contribute towards the
full amount necessary to purchase the annuity. The council may,
from time to time as it deems appropriate, fix an amount which
the fund will contribute toward the purchase of annuities. The
commissioner and the council are authorized to either fund such
annuities through the investments of the workers' compensation
fund or through the use of a private provider of annuities. The
selection of such a private provider of annuities shall be
through competitive bids. If at the time of the claimant's death
he or she has no dependents, then the proceeds of the annuity
shall remain with the fund. Should such a claimant's entitlement
to receive the permanent total disability award terminate due to
his or her attaining the necessary retirement age provided for by
subdivision (d), section six of this article or for any other
reason other than the death of the claimant, then the annuity
shall be canceled and the proceeds thereof shall remain with the
fund.
NOTE: The purpose of this bill is to restore 104 weeks of
death benefits to widows or widowers of deceased workers'
compensation claimants who were awarded permanent total
disability benefits during their lifetimes, and who die from
causes other than disabling injuries. The bill eliminates
restrictions on receipt of such benefits which were enacted
during 1995.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.