State News : West Virginia

2019 West Virginia Legislative Session

Legislation Introduced Impacting Workers' Compensation

By: Karin L. Weingart

January 18, 2019

Spilman Thomas & Battle, PLLC

Senate Bill 74:  Establishes that unpaid volunteers for ski area operator or for ski area sponsored programs would be exempt from workers’ compensation benefits.

• Code Provision: §23-2-1a
• Sponsor: Senator Cline (R)

Senate Bill 114 and House Bill 2321:  To recognize post-traumatic stress disorder without physical injury for First Responders as an exception to the law that mental injuries without physical injuries are not compensable (so-called mental-mental claims).

• Code Provision: §23-4-1f
• Senate Sponsors: Senators Romano (D), Jeffries (D), Baldwin (D), and Lindsay (D)
• House Sponsors: Delegates Lovejoy (D), Miller (D), Canestraro (D), and Rohrbach (R)

House Bill 2365:  To amend the definition of employee to conform to Internal Revenue code provisions, with specific reference to the 20-factor test used by the IRS.

• Code Provision: §23-2-1a
• Sponsors: Delegates Foster (R), Higginbotham (R), Fast (R), Linville (R), Pack (R), Steele (R), Phillips (R), Shott (R), Summers (R), Kessinger (R), Cadle (R)

Senate Bill 144:  Establishes a West Virginia State Black Lung Program to award benefits for pain and suffering for occupational pneumoconiosis. Ten years of exposure and a chronic respiratory disability (disability does not need to be total) provides a conclusive presumption of entitlement to pain and suffering benefits. Benefits are paid at a base rate of $300 per month, with an increase of $20 for each year beyond the initial 10 years. Recipients will also be permitted to claim the benefits as a credit against state income tax. A separate fund is to be established for payment of the benefits through an additional severance tax imposed on  coal, natural gas or oil, and generation of electricity by wind or solar device.

• Code Provision: §23-4D-1 et seq. (This is a new article to be added to Chapter 23)
• Sponsors: Senators Ojeda* (D) and Stollings (D)
  
  * Resigned his Senate post to make a bid for the 2020 US Presidential Primary
• NOTE: Similar legislation introduced at least once in previous sessions garnered no momentum.

Senate Bill 260:  Reinstates 5% award for a diagnosis of occupational pneumoconiosis without measureable impairment. Adds a new provision granting a 25% PPD award for a diagnosis of massive fibrosis or complicated pneumoconiosis without impairment. This provision includes an offset from any future PPD award recommended by OP Board. (No such offset for the 5% award.)

• Code Provision: §23-4-6a; §23-4-26 (New)
• Sponsors: Senators Stollings (D), Jeffries (D), Prezioso D), Takubo (R), Hamilton (R),     Lindsay (D), Maroney (R)

Senate Bill 2:  Establishes an Intermediate Court of Appeals and eliminates the Workers' Compensation Board of Review.

• Code Provision: §23-5-10; §23-5-11a (New); also impacts Chapters 3, 29A, 51, and 58
• Sponsors: Senators Trump (R), Boso (R), Takubo (R), Weld (R), and Cline (R)