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.