Current through Register Vol. XLI, No. 50, December 13, 2024
Section 85-15-7 - Payment of Indemnity Benefits7.1. In every case in which the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, authorizes physical and/or vocational rehabilitation services pursuant to a rehabilitation plan, and the implementation of that plan has begun, the injured worker shall, if otherwise appropriate under applicable law, receive temporary total rehabilitation disability benefits or temporary partial rehabilitation benefits as provided in W. Va. Code § 23-4-9.7.2. As part of a rehabilitation plan, an injured worker may return to work at an alternate, modified or transitional work assignment on a temporary basis. The duration of the temporary work must be determined on a case-by-case basis by the qualified rehabilitation professional and be justified in the rehabilitation plan.a. Whenever it is proposed that an injured worker return to work under section 7.2 of this rule, the employer, with the assistance of the qualified rehabilitation professional, must furnish the injured worker's treating physician, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, and all parties to the claim a statement describing the work in terms that will enable the physician to relate the essential tasks, and other material job functions, of the job to the injured worker's functional abilities. The treating physician must then advise the qualified rehabilitation professional within fifteen (15) working days of receipt of information pertaining to the essential tasks of the job whether the injured worker is physically capable of performing the work described and/or what additional testing or information is required to make this determination. When the information is furnished to the treating physician and the employer, the qualified rehabilitation professional shall inform the treating physician that the failure to respond within the time allotted may result in the Commission's, Insurance Commissioner's, self-insured employer's or private carrier's, whichever is applicable, issuance of a functional ability opinion. The injured worker may consent to undertake the work assignment without the approval of his or her treating physician. In cases where the injured worker has no treating physician or in cases in which the treating physician has not fully cooperated in the rehabilitation process, the Commission's independent medical evaluator, including its Office of Medical Services, or the medical evaluator of the Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, may provide a functional ability opinion.b. Upon undertaking employment under section 7.2 of this rule, the injured worker's temporary total disability benefits, if any, will be terminated and he or she may become eligible for temporary partial rehabilitation benefits, if applicable under section 7.3 of this rule. If the work impedes the injured worker's recovery to the extent that he or she cannot continue to work or if his or her compensable condition worsens due to the work being performed, the temporary total payments, if applicable, shall, if otherwise appropriate under applicable law, be resumed when objective medical documentation is presented to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, directly relating the inability to work due to the compensable injury or results thereof. If the work ends or is no longer otherwise available, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, shall decide whether the injured worker has sufficiently recovered to permit the injured worker to return to his or her usual job or to other available work, or if other rehabilitative services are required to return the injured worker to employment. Benefits will not be reinstated solely because of lay-off or unavailability of work. If the decision is that the injured worker cannot return to employment, temporary total rehabilitation benefits or temporary total disability benefits, whichever applicable and otherwise payable under applicable law, shall be reinstated, if otherwise appropriate, but only for the period authorized by law.7.3. If the injured worker, pursuant to a rehabilitation plan, returns to employment with the same employer or a new employer in either a full time or part time capacity, and to either gainful employment or to a transitional, modified or alternate work assignment, pursuant to section 7.2 of this rule, and if the injured worker's average weekly wage earnings are less than the average weekly wage earnings earned by the injured worker at the time of the injury, then he or she shall, if otherwise appropriate under applicable law, be entitled to receive temporary partial rehabilitation benefits. The injured worker's average weekly wage earnings upon return to work for the purposes of section 7.4 will be the injured worker's actual gross earnings, as reported to the state tax department and the federal internal revenue service and substantiated by payroll documentation or other information as requested by the Commission, Insurance Commissioner, or private carrier, whichever is applicable.7.4. Temporary rehabilitation benefits are calculated, as follows: a. The temporary partial rehabilitation benefit is seventy percent (70%) of the difference between the average weekly wage earned at the time of the injury and the average weekly wage earned at the new employment, to be calculated as provided under W. Va. Code § 23-4-9(d);b. The temporary partial rehabilitation benefits are not subject to the minimum benefit amounts required by the provisions of W. Va. Code § 23-4-6(b); andc. The temporary partial rehabilitation benefits cannot exceed the temporary total disability benefits to which the injured worker would be entitled pursuant to W. Va. Code § 23-4-6, -6d, and -14, during any period of temporary total disability resulting from the injury in the claim. The temporary partial rehabilitation benefits plan must be reviewed at least every ninety (90) days to determine if continuation of such plan is appropriate.7.5. Temporary partial rehabilitation benefits are only payable during the implementation and successful progress toward completion of a rehabilitation plan. Upon termination of the plan, as provided for under this rule, or upon expiration of the plan, payment of all temporary partial and/or total rehabilitation benefits must be stopped regardless of the injured worker's level of wages.7.6. Payments of temporary partial rehabilitation benefits for differences of five percent (5%) or less in the pre-injury average weekly wage and the new employment average weekly wage will not be made because the benefit gives no economic incentive to the injured worker and would be too costly to administer.7.7. The injured worker cannot receive both temporary total disability benefits and temporary partial rehabilitation benefits for the same time period.7.8. The injured worker can receive both temporary partial disability benefits and permanent partial disability benefits for the same period of time. The limitations on rehabilitation benefits set forth in W. Va. Code § 23-4-9 and the limitations on temporary total disability benefits set forth in W. Va. Code § 23-4-6(c) are separate limitations and the receipt of rehabilitation benefits shall not be applied against the limitations on temporary total disability benefits. Likewise, the receipt of temporary total disability benefits shall not be applied against the limitations on rehabilitation benefits.7.9. The aggregate award of temporary total rehabilitation or temporary partial rehabilitation benefits for a single injury shall be for a period not exceeding fifty-two (52) weeks. That is, an injured worker is entitled to 52 weeks of temporary total rehabilitation benefits and 52 weeks of temporary partial rehabilitation benefits. These limitations do not apply to rehabilitation awards made on or before July 1, 2003. 7.10. If payment of temporary total rehabilitation benefits is in conjunction with an approved vocational rehabilitation plan for retraining, the period of temporary total rehabilitation benefits may be extended for up to an additional fifty-two (52) weeks, but shall never exceed a total of one hundred four (104) weeks.