WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Enrolled Senate Bill 170
By Senators Weld, Takubo, Phillips, Tarr, Oliverio,
Deeds, Swope, Hamilton, Queen, Woodrum, Stuart,
Jeffries, and Grady [Passed March 8, 2024; in effect from passage]
 Enr SB 170
1 AN ACT to amend and reenact §23-4-1 of the Code of West Virginia, 1931, as amended, relating
2 to compensable diseases of certain firefighters covered by workers' compensation;
3 establishing rebuttable presumption of injury arising out of, and in the course of,
4 employment for certain covered firefighters that develop bladder cancer, mesothelioma,
5 and testicular cancer; providing for conditions of the presumption; and providing that the
6 rebuttable presumption expires on July 1, 2027, unless extended by the Legislature.
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.
1 (a) Subject to the provisions and limitations elsewhere in this chapter, workers'
2 compensation benefits shall be paid to the employees of employers subject to this chapter who
3 have received personal injuries in the course of and resulting from their covered employment or to
4 the dependents, if any, of the employees in case death has ensued, according to the provisions
5 hereinafter made: Provided, That in the case of any employees of the state and its political
6 subdivisions, including: Counties; municipalities; cities; towns; any separate corporation or
7 instrumentality established by one or more counties, cities or towns as permitted by law; any
8 corporation or instrumentality supported in most part by counties, cities or towns; any public
9 corporation charged by law with the performance of a governmental function and whose
10 jurisdiction is coextensive with one or more counties, cities or towns; any agency or organization
11 established by the Department of Mental Health, or its successor agencies, for the provision of
12 community health or intellectual and developmental disability services and which is supported, in
13 whole or in part, by state, county, or municipal funds; board, agency, commission, department, or
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14 spending unit, including any agency created by rule of the Supreme Court of Appeals, who have
15 received personal injuries in the course of, and resulting from, their covered employment, the
16 employees are ineligible to receive compensation while the employees are at the same time, and
17 for the same reason, drawing sick leave benefits. The state employees may only use sick leave for
18 nonjob-related absences consistent with sick leave use and may draw workers’ compensation
19 benefits only where there is a job-related injury. This proviso does not apply to permanent benefits:
20 Provided, however, That the employees may collect sick leave benefits until receiving temporary
21 total disability benefits. The Division of Personnel shall propose rules for legislative approval
22 pursuant to §29A-3-1 et seq. of this code relating to use of sick leave benefits by employees
23 receiving personal injuries in the course of, and resulting from, covered employment: Provided
24 further, That if an employee is injured in the course of and resulting from covered employment and
25 the injury results in lost time from work and the employee, for whatever reason, uses or obtains
26 sick leave benefits and subsequently receives temporary total disability benefits for the same time
27 period, the employee may be restored sick leave time taken by him or her as a result of the
28 compensable injury by paying to his or her employer the temporary total disability benefits
29 received or an amount equal to the temporary total disability benefits received. The employee shall
30 be restored sick leave time on a day-for-day basis which corresponds to temporary total disability
31 benefits paid to the employer: And provided further, That since the intent of this subsection is to
32 prevent an employee of the state or any of its political subdivisions from collecting both temporary
33 total disability benefits and sick leave benefits for the same time period, nothing in this subsection
34 prevents an employee of the state or any of its political subdivisions from electing to receive either
35 sick leave benefits or temporary total disability benefits, but not both.
36 (b) For the purposes of this chapter, the terms "injury" and "personal injury" include
37 occupational pneumoconiosis and any other occupational disease, as hereinafter defined, and
38 workers' compensation benefits shall be paid to the employees of the employers in whose
39 employment the employees have been exposed to the hazards of occupational pneumoconiosis
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40 or other occupational disease and have contracted occupational pneumoconiosis or other
41 occupational disease, or have suffered a perceptible aggravation of an existing pneumoconiosis or
42 other occupational disease, or to the dependents, if any, of the employees, in case death has
43 ensued, according to the provisions hereinafter made: Provided, That compensation is not
44 payable for the disease of occupational pneumoconiosis, or death resulting from the disease,
45 unless the employee has been exposed to the hazards of occupational pneumoconiosis in the
46 State of West Virginia over a continuous period of not less than two years during the 10 years
47 immediately preceding the date of his or her last exposure to such hazards, or for any five of the 15
48 years immediately preceding the date of his or her last exposure. An application for benefits on
49 account of occupational pneumoconiosis shall set forth the name of the employer or employers
50 and the time worked for each. The commission may allocate to and divide any charges resulting
51 from such claim among the employers by whom the claimant was employed for as much as 60
52 days during the period of three years immediately preceding the date of last exposure to the
53 hazards of occupational pneumoconiosis. The allocation shall be based upon the time and degree
54 of exposure withemployer.
55 (c) For the purposes of this chapter, disability or death resulting from occupational
56 pneumoconiosis, as defined in subsection (d) of this section, shall be treated and compensated as
57 an injury by accident.
58 (d) Occupational pneumoconiosis is a disease of the lungs caused by the inhalation of
59 minute particles of dust over a period of time due to causes and conditions arising out of, and in the
60 course of, the employment. The term "occupational pneumoconiosis" includes, but is not limited
61 to, such diseases as silicosis, anthracosilicosis, coal worker’s pneumoconiosis, commonly known
62 as black lung or miner's asthma, silicotuberculosis (silicosis accompanied by active tuberculosis of
63 the lungs), coal worker's pneumoconiosis accompanied by active tuberculosis of the lungs,
64 asbestosis, siderosis, anthrax, and any and all other dust diseases of the lungs and conditions and
65 diseases caused by occupational pneumoconiosis which are not specifically designated in this
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66 section meeting the definition of occupational pneumoconiosis set forth in this subsection.
67 (e) In determining the presence of occupational pneumoconiosis, x-ray evidence may be
68 considered, but may not be accorded greater weight than any other type of evidence
69 demonstrating occupational pneumoconiosis.
70 (f) For the purposes of this chapter, occupational disease means a disease incurred in the
71 course of and resulting from employment. No ordinary disease of life to which the general public is
72 exposed outside of the employment is compensable except when it follows as an incident of
73 occupational disease as defined in this chapter. Except in the case of occupational
74 pneumoconiosis, a disease is considered to have been incurred in the course of, or to have
75 resulted from, the employment only if it is apparent to the rational mind, upon consideration of all
76 the circumstances: (1) That there is a direct causal connection between the conditions under
77 which work is performed and the occupational disease; (2) that it can be seen to have followed as
78 a natural incident of the work as a result of the exposure occasioned by the nature of the
79 employment; (3) that it can be fairly traced to the employment as the proximate cause; (4) that it
80 does not come from a hazard to which workmen would have been equally exposed outside of the
81 employment; (5) that it is incidental to the character of the business and not independent of the
82 relation of employer and employee; and (6) that it appears to have had its origin in a risk connected
83 with the employment and to have flowed from that source as a natural consequence, though it
84 need not have been foreseen or expected before its contraction: Provided, That compensation is
85 not payable for an occupational disease or death resulting from the disease unless the employee
86 has been exposed to the hazards of the disease in the State of West Virginia over a continuous
87 period that is determined to be sufficient, by rule of the Insurance Commissioner and Industrial
88 Council, for the disease to have occurred in the course of and resulting from the employee’s
89 employment. An application for benefits on account of an occupational disease shall set forth the
90 name of the employer or employers and the time worked for each. The commission may allocate
91 to and divide any charges resulting from the claim among the employers by whom the claimant
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92 was employed. The allocation shall be based upon the time and degree of exposure with each
93 employer.
94 (g) No award may be made under the provisions of this chapter for any occupational
95 disease contracted prior to July 1, 1949. An employee has contracted an occupational disease
96 within the meaning of this subsection if the disease or condition has developed to such an extent
97 that it can be diagnosed as an occupational disease.
98 (h) For purposes of this chapter, a rebuttable presumption that a professional firefighter
99 who has developed a cardiovascular or pulmonary disease or sustained a cardiovascular injury or
100 who has developed leukemia, lymphoma, multiple myeloma, bladder cancer, mesothelioma, or
101 testicular cancer arising out of, and in the course of, employment as a firefighter has received an
102 injury or contracted a disease arising out of, and in the course of, his or her employment exists if:
103 (A) The person has been actively employed by a fire department as a professional firefighter for a
104 minimum of two years prior to the cardiovascular injury or onset of a cardiovascular or pulmonary
105 disease or death; (B) the injury or onset of the disease or death occurred within six months of
106 having participated in firefighting or a training or drill exercise which actually involved firefighting;
107 and (C) in the case of the development of leukemia, lymphoma, multiple myeloma, bladder cancer,
108 mesothelioma, or testicular cancer, the person has been actively employed by a fire department as
109 a professional firefighter for a minimum of five years in the state prior to the development of
110 leukemia, lymphoma, multiple myeloma, bladder cancer, mesothelioma, or testicular cancer, has
111 not used tobacco products more than six times in a calendar year for at least 10 years, and is not
112 over the age of 65 years. When the above conditions are met, it shall be presumed that sufficient
113 notice of the injury, disease, or death has been given and that the injury, disease, or death was not
114 self-inflicted. The amendments made to this section during the regular session of the Legislature,
115 2024, to include bladder cancer, mesothelioma or testicular cancer arising out of, and in the course
116 of, employment as a firefighter as a rebuttable presumption expire on July 1, 2027, unless
117 extended by the Legislature.
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118 (i) Claims for occupational disease as defined in §23-4-1(f) of this code, except
119 occupational pneumoconiosis for all workers and pulmonary disease and cardiovascular injury
120 and disease for professional firefighters, shall be processed in like manner as claims for all other
121 personal injuries.
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Statutes affected:
Introduced Version: 23-4-1
Enrolled Version: 23-4-1