Senate Bill No. 219
(By Senators Bailey, Mitchell, Hunter and Dawson)
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[Introduced January 27, 2000; 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 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.