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1996 SESSION
961064655Be it enacted by the General Assembly of Virginia:
1. That §§ 65.2-406, 65.2-601 and 65.2-708 of the Code of Virginia are amended and reenacted as follows:
§ 65.2-406. Limitation upon claim; diseases covered by limitation.
A. The Unless an employee agrees in writing with (i) his employer,
when the employer is self-insured, or (ii) the [ employer and ]
insurer, in all other cases, to extend any time period for filing a specific
claim, and such writing is filed with the Commission within the time period
otherwise specified in this section, the right to compensation under this
chapter shall be forever barred unless a claim is filed with the Commission
within one of the following time periods:
1. For coal miners' pneumoconiosis, three years after a diagnosis of the disease, as category 1/0 or greater as classified under the International Labour Office Classification of Radiographs of the Pneumoconiosis (1980), is first communicated to the employee or the legal representative of his estate or within five years from the date of the last injurious exposure in employment, whichever first occurs;
2. For byssinosis, two years after a diagnosis of the disease is first communicated to the employee or within seven years from the date of the last injurious exposure in employment, whichever first occurs;
3. For asbestosis, two years after a diagnosis of the disease is first communicated to the employee;
4. For symptomatic or asymptomatic infection with human immunodeficiency virus including acquired immunodeficiency syndrome, two years after a positive test for infection with human immunodeficiency virus; or
5. For all other occupational diseases, two years after a diagnosis of the disease is first communicated to the employee or within five years from the date of the last injurious exposure in employment, whichever first occurs.
B. If Unless a deceased employee's eligible dependent under this
title agrees in writing with (i) the employer, when the employer is
self-insured, or (ii) the [ employer and ] insurer, in all other
cases, to extend any time period for filing a specific claim, and such writing
is filed with the Commission within the time period otherwise specified in this
section, if death results from an occupational disease within any of such
periods, the right to compensation under this chapter shall be barred, unless a
claim therefor is filed with the Commission within three years after such
death. The limitations imposed by this section as amended shall be applicable
to occupational diseases contracted before and after July 1, 1962, and §
65.2-601 shall not apply to pneumoconiosis. The limitation on time of filing
will cover all occupational diseases except:
1. Cataract of the eyes due to exposure to the heat and glare of molten glass or to radiant rays such as infrared;
2. Epitheliomatous cancer or ulceration of the skin or of the corneal surface of the eye due to pitch, tar, soot, bitumen, anthracene, paraffin, mineral oil, or their compounds, products or residues;
3. Radium disability or disability due to exposure to radioactive substances and X-rays;
4. Ulceration due to chrome compound or to caustic chemical acids or alkalies and undulant fever caused by the industrial slaughtering and processing of livestock and handling of hides;
5. Mesothelioma due to exposure to asbestos; and
6. Angiosarcoma of the liver due to vinyl chloride exposure.
C. When Unless an employee agrees in writing with (i) his employer,
when the employer is self-insured, or (ii) the [ employer and ]
insurer, in all other cases, to extend any time period for filing a specific
claim, and such writing is filed with the Commission within the time period
otherwise specified in this section, when a claim is made for benefits for
a change of condition in an occupational disease, such as advance from one
stage or category to another, a claim for change in condition must be filed
with the Commission within three years from the date for which compensation was
last paid for an earlier stage of the disease, except that a claim for benefits
for a change in condition in asbestosis must be filed within two years from the
date when diagnosis of the advanced stage is first communicated to the employee
and no claim for benefits for an advanced stage of asbestosis shall be denied
on the ground that there has been no subsequent accident. For a first or an
advanced stage of asbestosis or mesothelioma, if the employee is still employed
in the employment in which he was injuriously exposed, the weekly compensation
rate shall be based upon the employee's weekly wage as of the date of
communication of the first or advanced stage of the disease, as the case may
be. If the employee is unemployed, or employed in another employment, the
weekly compensation rate shall be based upon the average weekly wage of a
person of the same or similar grade and character in the same class of
employment in which the employee was injuriously exposed and preferably in the
same locality or community on the date of communication to the employee of the
advanced stage of the disease or mesothelioma. The weekly compensation rates
herein provided shall be subject to the same maximums and minimums as provided
in § 65.2-500.
§ 65.2-601. Time for filing claim.
The right to compensation under this title shall be forever barred, unless a
claim be is filed with the Commission within two years after the
accident. Death benefits payable under this title shall be payable only if:
(i) death results from the accident, (ii) a claim for benefits under this title
has been filed within two years after the accident, and (iii) the claim for
such death benefits is filed within two years from the date of death. An
employee, or the employee's eligible dependent under this title, as
appropriate, may agree in writing with (i) the employer, when the employer is
self-insured, or (ii) the [ employer and ] insurer, in all other
cases, to extend any time period for filing a specific claim, if such writing
is filed with the Commission within the time period otherwise specified in this
section.
§ 65.2-708. Review of award on change in condition.
A. Upon its own motion or upon the application of any party in interest, on
the ground of a change in condition, the Commission may review any award and on
such review may make an award ending, diminishing or increasing the
compensation previously awarded, subject to the maximum or minimum provided in
this title, and shall immediately send to the parties a copy of the award. No
application filed by a party alleging a change in condition shall be docketed
for hearing by the Commission unless any medical reports upon which the party
is relying are submitted to the Commission. No such review shall affect such
award as regards any moneys paid except pursuant to §§ 65.2-712,
65.2-1105, and 65.2-1205. No Unless an employee agrees in writing
with (i) his employer, when the employer is self-insured, or (ii) the [
employer and ] insurer, in all other cases, to extend any time period
for review of a specific claim, and such writing is filed with the Commission
within the time period otherwise specified in this section, no such review
shall be made after twenty-four months from the last day for which compensation
was paid, pursuant to an award under this title, except: (i) thirty-six months
from the last day for which compensation was paid shall be allowed for the
filing of claims payable under § 65.2-503 and certain claims under
subsection B of § 65.2-406 or (ii) twenty-four months from the day that
the claimant undergoes any surgical procedure compensable under § 65.2-603
to repair or replace a prosthesis or orthosis.
B. In those cases where no compensation has been paid, the Commission may make an award under § 65.2-503 within thirty-six months from the date of the accident.
C. All wages paid, for a period not exceeding twenty-four consecutive months, to an employee (i) who is physically unable to return to his pre-injury work due to a compensable injury and (ii) who is provided work within his capacity at a wage equal to or greater than his pre-injury wage, shall be considered compensation.