Bill Text: WV SB82 | 2018 | Regular Session | Comm Sub
Bill Title: Including rebuttable presumptions in certain cases for firefighters with regard to workers' compensation
Spectrum: Partisan Bill (Republican 2-0)
Status: (Passed) 2018-04-23 - Chapter 246, Acts, Regular Session, 2018 [SB82 Detail]
Download: West_Virginia-2018-SB82-Comm_Sub.html
WEST virginia legislature
2018 regular session
Committee Substitute
for
Senate Bill 82
By Senators Ferns and Cline
[Originating in the Committee on Government Organization; Reported on February 22, 2018]
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; including rebuttable presumptions for certain injuries and diseases for professional firefighters; setting eligibility criteria for rebuttable presumptions; setting expiration of rebuttable presumption regarding leukemia, lymphoma, or multiple myeloma arising out of and in the course of employment as a firefighter on July 1, 2023, absent legislative action to the contrary; allowing coverage to employees for occupational pneumoconiosis or other occupational disease for work performed out of state under certain conditions; and eliminating outdated and obsolete language.
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 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 intellectual and developmental disability 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 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 is 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 10 years immediately preceding the date of his or her last exposure
to such hazards, or for any five of the 15 years immediately preceding the date
of his or her last exposure: Provided, however, That
compensation may be paid for the disease of occupational pneumoconiosis or
other occupational disease, or death resulting from the disease when the
employee performed work out of the state at the direction and under the control
of the employer. 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 60 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 §23-4-1(d) of this code, 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 is
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 is 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 who has
developed a cardiovascular or pulmonary disease or sustained a cardiovascular
injury or who has developed leukemia, lymphoma, or multiple myeloma arising
out of and in the course of employment as a firefighter has received an
injury or contracted a disease arising out of and in the course of his or her
employment exists if: (A) The person has been actively employed by a fire
department as a professional firefighter for a minimum of two years prior to
the cardiovascular injury or onset of a cardiovascular or pulmonary disease or
death; and (B) 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; and (C) in the case of the
development of leukemia, lymphoma, or multiple myeloma the person has been
actively employed by a fire department as a professional firefighter for a
minimum of five years in the state prior to the development of leukemia, lymphoma,
or multiple myeloma, has not used tobacco products for at least ten years, and is
not over the age of 65 years. When the above conditions are met, it shall
be 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.
(2) The amendments made to this section during the 2018 regular session of the Legislature to include leukemia, lymphoma, or multiple myeloma arising out of and in the course of employment as a firefighter as a rebuttable presumption shall expire on July 1, 2023, unless extended by the Legislature.
(i) Claims for occupational disease as defined in §23-4-1(f) of this code, 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.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.
