Bill Text: WV SB77 | 2018 | Regular Session | Introduced
Bill Title: Providing rebuttable presumptions for certain injuries and diseases for workers' compensation coverage for police and firefighters
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2018-01-10 - To Government Organization [SB77 Detail]
Download: West_Virginia-2018-SB77-Introduced.html
WEST virginia Legislature
2018 regular session
Introduced
Senate Bill 77
By Senators Ferns and Cline
[Introduced January 10, 2018; Referred
to the Committee on Government Organization; 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 and municipal, county and state police officers.
Be it enacted by the Legislature of West Virginia:
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-1. To whom compensation fund disbursed; occupational pneumoconiosis and other occupational diseases included in "injury" and "personal 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
employee 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 §29A-3-1 et seq. 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 an 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 "injury" and "personal 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 not be is
not 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 "occupational 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 "social" 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 rebuttable presumptions for certain injuries and diseases for Workers Compensation coverage for certain firefighters and police officers.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.