Bill Text: WV SB475 | 2016 | Regular Session | Introduced
Bill Title: Providing rebuttable presumptions for certain injuries and diseases for firefighters and police officers
Spectrum: Bipartisan Bill
Status: (Introduced - Dead) 2016-02-02 - To Banking and Insurance [SB475 Detail]
Download: West_Virginia-2016-SB475-Introduced.html
WEST virginia Legislature
2016 regular session
Introduced
Senate Bill 475
By Senators Ferns and Kessler
[Introduced February
2, 2016;
Referred to the Committee on Banking and Insurance; and then to the Committee
on the Judiciary.]
A BILL to amend and reenact §23-4-1 of the Code of West Virginia, 1931, as amended, relating to whom Workers’ Compensation Fund is disbursed; and including rebuttable presumptions for certain injuries and diseases for firefighters, volunteer firefighters, municipal, county and State Police officers.
Be it enacted by the Legislature of West Virginia:
That §23-4-1 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1. To whom compensation fund disbursed; occupational pneumoconiosis and other occupational diseases included in Ainjury@ and Apersonal injury@; definition of occupational pneumoconiosis and other occupational diseases; rebuttable presumption for cardiovascular injury and disease or pulmonary disease for firefighters.
(a) Subject to the
provisions and limitations elsewhere in this chapter, workers= compensation benefits shall be paid the Workers= Compensation Fund, to the employees of employers
subject to this chapter who have received personal injuries in the course of
and resulting from their covered employment or to the dependents, if any, of
the employees in case death has ensued, according to the provisions hereinafter
made: Provided, That in the case of if any employees of
the state and its political subdivisions, including: counties; municipalities;
cities; towns; any separate corporation or instrumentality established by one
or more counties, cities or towns as permitted by law; any corporation or
instrumentality supported in most part by counties, cities or towns; any public
corporation charged by law with the performance of a governmental function and
whose jurisdiction is coextensive with one or more counties, cities or towns;
any agency or organization established by the Department of Mental Health, or its successor agencies, for the provision of community health or mental
retardation services and which is supported, in whole or in part, by state,
county or municipal funds; board, agency, commission, department or spending
unit, including any agency created by rule of the Supreme Court of Appeals, who
have received personal injuries in the course of and resulting from their
covered employment, the employees are ineligible to receive compensation while
the employees are at the same time and for the same reason drawing sick leave
benefits. The state employees may only use sick leave for nonjob-related
absences consistent with sick leave use and may draw workers= compensation benefits only where there is a job-related
injury. This proviso shall does not apply to permanent benefits: Provided,
however, That the employees may collect sick leave benefits until receiving
temporary total disability benefits. The Division of Personnel shall promulgate
propose rules for legislative
approval pursuant to article three,
chapter twenty-nine-a of this code relating to use of sick leave benefits by
employees receiving personal injuries in the course of and resulting from
covered employment: Provided further, That in the event an if
employee is injured in the course of and resulting from covered employment and
the injury results in lost time from work and the employee for whatever reason
uses or obtains sick leave benefits and subsequently receives temporary total
disability benefits for the same time period, the employee may be restored sick
leave time taken by him or her as a result of the compensable injury by paying
to his or her employer the temporary total disability benefits received or an
amount equal to the temporary total disability benefits received. The employee
shall be restored sick leave time on a day-for-day basis which corresponds to
temporary total disability benefits paid to the employer: And provided
further, That since the intent of this subsection is to prevent an employee
of the state or any of its political subdivisions from collecting both
temporary total disability benefits and sick leave benefits for the same time
period, nothing in this subsection prevents an employee of the state or any of
its political subdivisions from electing to receive either sick leave benefits
or temporary total disability benefits, but not both.
(b) For the purposes of
this chapter, the terms Ainjury@ and Apersonal injury@ include occupational pneumoconiosis and any other
occupational disease, as hereinafter defined, and workers= compensation benefits shall be paid to the employees
of the employers in whose employment the employees have been exposed to the
hazards of occupational pneumoconiosis or other occupational disease and in
this state have contracted occupational pneumoconiosis or other
occupational disease, or have suffered a perceptible aggravation of an existing
pneumoconiosis or other occupational disease, or to the dependents, if any, of
the employees, in case death has ensued, according to the provisions
hereinafter made: Provided, That compensation shall may not
be payable for the disease of occupational pneumoconiosis, or death resulting
from the disease, unless the employee has been exposed to the hazards of occupational
pneumoconiosis in the State of West Virginia over a continuous period of not
less than two years during the ten years immediately preceding the date of his
or her last exposure to such these hazards, or for any five of
the fifteen years immediately preceding the date of his or her last exposure.
An application for benefits on account of occupational pneumoconiosis shall set
forth the name of the employer or employers and the time worked for each. The
commission may allocate to and divide any charges resulting from such claim
among the employers by whom the claimant was employed for as much as sixty days
during the period of three years immediately preceding the date of last
exposure to the hazards of occupational pneumoconiosis. The allocation shall be
based upon the time and degree of exposure with each employer.
(c) For the purposes of this chapter, disability or death resulting from occupational pneumoconiosis, as defined in subsection (d) of this section, shall be treated and compensated as an injury by accident.
(d) Occupational pneumoconiosis is a disease of the lungs caused by the inhalation of minute particles of dust over a period of time due to causes and conditions arising out of and in the course of the employment. The term Aoccupational pneumoconiosis@ includes, but is not limited to, such diseases as silicosis, anthracosilicosis, coal worker=s pneumoconiosis, commonly known as black lung or miner=s asthma, silicotuberculosis (silicosis accompanied by active tuberculosis of the lungs), coal worker=s pneumoconiosis accompanied by active tuberculosis of the lungs, asbestosis, siderosis, anthrax and any and all other dust diseases of the lungs and conditions and diseases caused by occupational pneumoconiosis which are not specifically designated in this section meeting the definition of occupational pneumoconiosis set forth in this subsection.
(e) In determining the
presence of occupational pneumoconiosis, X-ray evidence may be considered, but shall
may not be accorded greater weight than any other type of evidence
demonstrating occupational pneumoconiosis.
(f) For the purposes of
this chapter, occupational disease means a disease incurred in the course of
and resulting from employment. No ordinary disease of life to which the general
public is exposed outside of the employment is compensable except when it
follows as an incident of occupational disease as defined in this chapter.
Except in the case of occupational pneumoconiosis, a disease shall be
considered to have been incurred in the course of or to have resulted from the
employment only if it is apparent to the rational mind, upon consideration of
all the circumstances: (1) That there is a direct causal connection between the
conditions under which work is performed and the occupational disease; (2) that
it can be seen to have followed as a natural incident of the work as a result
of the exposure occasioned by the nature of the employment; (3) that it can be
fairly traced to the employment as the proximate cause; (4) that it does not
come from a hazard to which workmen would have been equally exposed outside of
the employment; (5) that it is incidental to the character of the business and
not independent of the relation of employer and employee; and (6) that it
appears to have had its origin in a risk connected with the employment and to
have flowed from that source as a natural consequence, though it need not have
been foreseen or expected before its contraction: Provided, That compensation
shall may not be payable for an occupational disease or death
resulting from the disease unless the employee has been exposed to the hazards
of the disease in the State of West Virginia over a continuous period that is
determined to be sufficient, by rule of the board of managers, for the disease
to have occurred in the course of and resulting from the employee=s employment. An application for benefits on account
of an occupational disease shall set forth the name of the employer or
employers and the time worked for each. The commission may allocate to and
divide any charges resulting from such the claim among the
employers by whom the claimant was employed. The allocation shall be based upon
the time and degree of exposure with each employer.
(g) No award shall may
be made under the provisions of this chapter for any occupational disease
contracted prior to July 1, 1949. An employee shall be considered to have
has contracted an occupational disease within the meaning of this
subsection if the disease or condition has developed to such an extent that it
can be diagnosed as an occupational disease.
(h) (1) For purposes
of this chapter, a rebuttable presumption that a professional firefighter, a member of a volunteer fire department, a
municipal police officer, a county police officer or a member of the West
Virginia State Police, who has
developed a cardiovascular or pulmonary disease or sustained a cardiovascular
injury has received an injury or contracted a disease arising out of and in the
course of his or her employment exists if: (i) The person has been actively
employed by a fire department, volunteer
fire department or as a police officer by a municipality, a county, or the West
Virginia State Police as a
professional firefighter, volunteer
fire fighter or a municipal, county or state police officer for a minimum of two years prior to the
cardiovascular injury or onset of a cardiovascular or pulmonary disease or
death; and (ii) the injury or onset of the disease or death occurred within six
months of having participated in firefighting or a training or drill exercise
which actually involved firefighting or
in the course of regular police work or a training or drill exercise related to
police work on the municipal, county or state level. When the above conditions are met, it shall be
is presumed that sufficient notice of the injury, disease or death has
been given and that the injury, disease or death was not self inflicted.
(2) The Insurance
Commissioner shall study the effects of the rebuttable presumptions created in
this subsection on the premiums charged for workers= compensation for professional municipal firefighters;
the probable effects of extending these presumptions to volunteer firefighters;
and the overall impact of the risk management programs, wage replacement,
premium calculation, the number of hours worked per volunteer, treatment of
nonactive or Asocial@ members of a volunteer crew and the feasibility of
combining various volunteer departments under a single policy on the
availability and cost of providing workers= compensation coverage to volunteer firefighters. The
Insurance Commissioner shall file the report with the Joint Committee on
Government and Finance no later than December 1, 2008.
(i) Claims for occupational disease as defined in subsection (f) of this section, except occupational pneumoconiosis for all workers and pulmonary disease and cardiovascular injury and disease for professional firefighters, shall be processed in like manner as claims for all other personal injuries.
(j) On or before January
1, 2004, the Workers= Compensation
Commission shall adopt standards for the evaluation of claimants and the
determination of a claimant=s degree of
whole-body medical impairment in claims of carpal tunnel syndrome.
NOTE: The purpose of this bill is to provide a rebuttable presumption that a professional firefighter has developed leukemia, lymphoma or multiple myeloma arising out of and in the course of employment as a firefighter if the firefighter completed certain cancer screening, the firefighter worked in West Virginia as a firefighter for at least five years, the firefighter has not used tobacco products for ten years and is not over sixty-five years old. The bill also allows coverage to employees for occupational pneumoconiosis or other occupational disease for work performed out-of-state.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
