Senate Bill No. 419

(By Senators Love, Prezioso, Caldwell, Hunger, Ross, Sharpe, Oliverio, Minard, Fanning, Wooton and Helmick)

____________

[Introduced January 25, 2002; referred to the Committee

on the Judiciary; and then to the Committee on Finance.]

____________




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.