AK Stat § 23.30.041 (2021)
2021 Alaska Statutes|Title 23. Labor and Workers' Compensation|Chapter 30. Alaska Workers' Compensation Act|Article 1. Administration.|Sec. 23.30.041. Rehabilitation and reemployment of injured workers.

(a) The director shall select and employ a reemployment benefits administrator. The director may authorize the administrator to select and employ additional staff. The administrator is in the partially exempt service under AS 39.25.120.  (b) The administrator shall (1) enforce regulations adopted by the board to implement this section; (2) recommend regulations for adoption by the board that establish performance and reporting criteria for rehabilitation specialists; (3) enforce the quality and effectiveness of reemployment benefits provided for under this section; (4) review on an annual basis the performance of rehabilitation specialists to determine continued eligibility for delivery of rehabilitation services; (5) submit to the department, on or before May 1 of each year, a report of reemployment benefits provided under this section for the previous calendar year; the report must include a general section, sections related to each rehabilitation specialist employed under this section, and a statistical summary of all rehabilitation cases, including (A) the estimated and actual cost of each active rehabilitation plan; (B) the estimated and actual time of each rehabilitation plan; (C) a status report on all individuals requesting, waiving, beginning, completing, or terminating a reemployment benefits program including (i) reasons for denial, waiver, suspension, or termination; (ii) dates of completion and return to work; and (iii) other information required by the director; (D) the cost of reemployment benefits; (E) status reports of all individuals who successfully completed a reemployment plan that includes (i) the plan's occupational goal and whether the individual obtained work after completion in the planned or another occupation; and (ii) the individual's employment status six months, one year, and two years after reemployment plan completion; (6) maintain a list of rehabilitation specialists who meet the qualifications established under this section; (7) promote awareness among physicians, adjusters, injured workers, employers, employees, attorneys, training providers, and rehabilitation specialists of the reemployment program established in this subsection. (c) An employee and an employer may stipulate to the employee's eligibility for reemployment benefits at any time. If an employee suffers a compensable injury and, as a result of the injury, the employee is totally unable, for 45 consecutive days, to return to the employee's employment at the time of injury, the administrator shall notify the employee of the employee's rights under this section within 14 days after the 45th day. If the employee is totally unable to return to the employee's employment for 60 consecutive days as a result of the injury, the employee or employer may request an eligibility evaluation. The administrator may approve the request if the employee's injury may permanently preclude the employee's return to the employee's occupation at the time of the injury. If the employee is totally unable to return to the employee's employment at the time of the injury for 90 consecutive days as a result of the injury, the administrator shall, without a request, order an eligibility evaluation unless a stipulation of eligibility was submitted. If the administrator approves a request or orders an evaluation, the administrator shall, on a rotating and geographic basis, select a rehabilitation specialist from the list maintained under (b)(6) of this section to perform the eligibility evaluation. If the person that employs a rehabilitation specialist selected by the administrator to perform an eligibility evaluation under this subsection is performing any other work on the same workers' compensation claim involving the injured employee, the administrator shall select a different rehabilitation specialist. (d) Within 30 days after the referral by the administrator, the rehabilitation specialist shall perform the eligibility evaluation and issue a report of findings. The administrator may grant up to an additional 30 days for performance of the eligibility evaluation upon notification of unusual and extenuating circumstances and the rehabilitation specialist's request. Within 14 days after receipt of the report from the rehabilitation specialist, the administrator shall notify the parties of the employee's eligibility for reemployment preparation benefits. Within 10 days after the decision, either party may seek review of the decision by requesting a hearing under AS 23.30.110. The hearing shall be held within 30 days after it is requested. The board shall uphold the decision of the administrator except for abuse of discretion on the administrator's part.  (e) An employee shall be eligible for benefits under this section upon the employee's written request and by having a physician predict that the employee will have permanent physical capacities that are less than the physical demands of the employee's job as described in the 1993 edition of the United States Department of Labor's “Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles” for (1) the employee's job at the time of injury; or (2) other jobs that exist in the labor market that the employee has held or received training for within 10 years before the injury or that the employee has held following the injury for a period long enough to obtain the skills to compete in the labor market, according to specific vocational preparation codes as described in the 1993 edition of the United States Department of Labor's “Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles.” (f) An employee is not eligible for reemployment benefits if (1) the employer offers employment within the employee's predicted post-injury physical capacities at a wage equivalent to at least the state minimum wage under AS 23.10.065 or 75 percent of the worker's gross hourly wages at the time of injury, whichever is greater, and the employment prepares the employee to be employable in other jobs that exist in the labor market;  (2) the employee previously declined the development of a reemployment benefits plan under (g) of this section, received a job dislocation benefit under (g)(2) of this section, and returned to work in the same or similar occupation in terms of physical demands required of the employee at the time of the previous injury; (3) the employee has been previously rehabilitated in a former worker's compensation claim and returned to work in the same or similar occupation in terms of physical demands required of the employee at the time of the previous injury; or (4) at the time of medical stability, no permanent impairment is identified or expected. (g) Within 30 days after the employee receives the administrator's notification of eligibility for benefits, an employee shall file a statement under oath with the board, on a form prescribed or approved by the board, to notify the administrator and the employer of the employee's election to either use the reemployment benefits or to accept a job dislocation benefit under (2) of this subsection. The notice of the election is effective upon service to the administrator and the employer. The following apply to an election under this subsection: (1) an employee who elects to use the reemployment benefits also shall notify the employer of the employee's selection of a rehabilitation specialist who shall provide a complete reemployment benefits plan; failure to give notice of selection of a rehabilitation specialist required by this paragraph constitutes noncooperation under (n) of this section; if the employer disagrees with the employee's choice of rehabilitation specialist to develop the plan and the disagreement cannot be resolved, then the administrator shall assign a rehabilitation specialist; the employer and employee each have one right of refusal of a rehabilitation specialist; (2) an employee who elects to accept a job dislocation benefit in place of reemployment benefits and who has been given a permanent partial impairment rating by a physician shall be paid (A) $5,000 if the employee's permanent partial impairment rating is greater than zero and less than 15 percent; (B) $8,000 if the employee's permanent partial impairment rating is 15 percent or greater but less than 30 percent; or (C) $13,500 if the employee's permanent partial impairment rating is 30 percent or greater; (3) the form provided by the division for election must specify that the employee understands the scope of the benefits and rights being waived by the election; the board shall serve a copy of the executed election form on the administrator and the employer within 10 days after receiving the form from the employee; a waiver and election effective under this subsection discharges the employer's liability for the benefits or rights under this section that were not elected; a waiver may not be modified under AS 23.30.130; the administrator may not accept an election to accept a job dislocation benefit by an employee who has not signed a form that conspicuously notes the benefit being waived.  (h) Within 90 days after the rehabilitation specialist's selection under (g) of this section, the reemployment plan must be formulated and approved. The reemployment plan must require continuous participation by the employee and must maximize the usage of the employee's transferrable skills. The reemployment plan must include at least the following: (1) a determination of the occupational goal in the labor market; (2) an inventory of the employee's technical skills, transferrable skills, physical and intellectual capacities, academic achievement, emotional condition, and family support; (3) a plan to acquire the occupational skills to be employable; (4) the cost estimate of the reemployment plan, including provider fees; and the cost of tuition, books, tools, and supplies, transportation, temporary lodging, or job modification devices; (5) the estimated length of time that the plan will take; (6) the date that the plan will commence; (7) the estimated time of medical stability as predicted by a treating physician or by a physician who has examined the employee at the request of the employer or the board, or by referral of the treating physician; (8) a detailed description and plan schedule; (9) a finding by the rehabilitation specialist that the inventory under (2) of this subsection indicates that the employee can be reasonably expected to satisfactorily complete the plan and perform in a new occupation within the time and cost limitations of the plan; and (10) a provision requiring that, after a person has been assigned to perform medical management services for an injured employee, the person shall send written notice to the employee, the employer, and the employee's physician explaining in what capacity the person is employed, whom the person represents, and the scope of the services to be provided. (i) Reemployment benefits shall be selected from the following in a manner that ensures remunerative employability in the shortest possible time: (1) on the job training; (2) vocational training; (3) academic training; (4) self-employment; or (5) a combination of (1) - (4) of this subsection. (j) The employee, rehabilitation specialist, and the employer shall sign the reemployment benefits plan. If the employer and employee fail to agree on a reemployment plan, either party may submit a reemployment plan for approval to the administrator; the administrator shall approve or deny a plan within 14 days after the plan is submitted; within 10 days of the decision, either party may seek review of the decision by requesting a hearing under AS 23.30.110; the board shall uphold the decision of the administrator unless evidence is submitted supporting an allegation of abuse of discretion on the part of the administrator; the board shall render a decision within 30 days after completion of the hearing.  (k) Benefits related to the reemployment plan may not extend past two years from date of plan approval or acceptance, whichever date occurs first, at which time the benefits expire. If an employee reaches medical stability before completion of the plan, temporary total disability benefits shall cease, and permanent impairment benefits shall then be paid at the employee's temporary total disability rate. If the employee's permanent impairment benefits are exhausted before the completion or termination of the reemployment process, the employer shall provide compensation equal to 70 percent of the employee's spendable weekly wages, but not to exceed 105 percent of the average weekly wage, until the completion or termination of the process, except that any compensation paid under this subsection is reduced by wages earned by the employee while participating in the process to the extent that the wages earned, when combined with the compensation paid under this subsection, exceed the employee's temporary total disability rate. If permanent partial disability or permanent partial impairment benefits have been paid in a lump sum before the employee requested or was found eligible for reemployment benefits, payment of benefits under this subsection is suspended until permanent partial disability or permanent partial impairment benefits would have ceased, had those benefits been paid at the employee's temporary total disability rate, notwithstanding the provisions of AS 23.30.155(j). A permanent impairment benefit remaining unpaid upon the completion or termination of the plan shall be paid to the employee in a single lump sum. An employee may not be considered permanently totally disabled so long as the employee is involved in the rehabilitation process under this chapter. The fees of the rehabilitation specialist or rehabilitation professional shall be paid by the employer and may not be included in determining the cost of the reemployment plan.  (l) The cost of the reemployment plan incurred under this section shall be the responsibility of the employer, shall be paid on an expense incurred basis, and may not exceed $13,300. (m) Only a rehabilitation specialist may accept case assignments as a case manager and sign eligibility determinations and reemployment plans. A person who is not a rehabilitation specialist may perform rehabilitation casework if the work is performed under the direct supervision of a rehabilitation specialist employed in the same firm and location. (n) After the employee has elected to participate in reemployment benefits, if the employer believes the employee has not cooperated, the employer may terminate reemployment benefits on the date of noncooperation. Noncooperation means (1) unreasonable failure to (A) keep appointments; (B) maintain passing grades; (C) attend designated programs; (D) maintain contact with the rehabilitation specialist; (E) cooperate with the rehabilitation specialist in developing a reemployment plan and participating in activities relating to reemployability on a full-time basis; (F) comply with the employee's responsibilities outlined in the reemployment plan; or (G) participate in any planned reemployment activity as determined by the administrator; or (2) failure to give written notice to the employer of the employee's choice of rehabilitation specialists within 30 days after receiving notice of eligibility for benefits from the administrator as required by (g) of this section. (o) Upon the request of either party, the administrator shall decide whether the employee has not cooperated as provided under (n) of this section. A hearing before the administrator shall be held within 30 days after it is requested. The administrator shall issue a decision within 14 days after the hearing. Within 10 days after the administrator files the decision, either party may seek review of the decision by requesting a hearing under AS 23.30.110; the board shall uphold the decision of the administrator unless evidence is submitted supporting an allegation of abuse of discretion on the part of the administrator; the board shall render a decision within 30 days after completion of the hearing.  (p) When the United States Department of Labor publishes a new edition, revision, or replacement for the “Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles” referred to in (e) of this section, the director shall, not later than 90 days after the last day of the month in which the new edition, revision, or replacement standard is published, hold an open meeting under AS 44.62.310 to select the proposed date on which the new edition, revision, or replacement standard will be implemented to make all eligibility determinations required under (e) of this section. The date selected by the department for implementing the new edition, revision, or replacement standard may not be later than 90 days after the last day of the month in which the new edition, revision, or replacement standard is published. After the meeting, the director shall issue a public notice announcing the date selected by the department. The requirements of AS 44.62.010 - 44.62.300 do not apply to the selection or announcement of the date under this subsection.  (q) Notwithstanding AS 23.30.012, after medical stability has been determined and a physician has predicted that the employee may have a permanent impairment that may cause the employee to have permanent physical capacities that are less than the physical demands of the employee's job at the time of injury, an employee may waive any benefits or rights under this section, including an eligibility evaluation and benefits related to a reemployment plan. To waive any benefits or rights under this section, an employee must file a statement under oath with the division to notify the parties of the waiver and to specify the scope of benefits or rights that the employee seeks to waive. The statement must be on a form prescribed or approved by the director. The division shall serve the notice of waiver on all parties to the claim within 10 days after filing. The waiver is effective upon service to the party. A waiver effective under this subsection discharges the liability of the employer for the benefits or rights contained in this section. The waiver may not be modified under AS 23.30.130.  (r) In this section, (1) “administrator” means the reemployment benefits administrator under (a) of this section; (2) “employability” means possessing the ability but not necessarily the opportunity to engage in employment that is consistent with the employee's physical status imposed by the compensable injury; (3) “labor market” means a geographical area that offers employment opportunities in the following priority: (A) area of residence; (B) area of last employment; (C) the state; (D) other states; (4) “physical capacities” means objective and measurable physical traits such as ability to lift and carry, walk, stand or sit, push, pull, climb, balance, stoop, kneel, crouch, crawl, reach, handle, finger, feel, talk, hear, or see; (5) “physical demands” means the physical requirements of the job such as strength, including positions such as standing, walking, sitting, and movement of objects such as lifting, carrying, pushing, pulling, climbing, balancing, stooping, kneeling, crouching, crawling, reaching, handling, fingering, feeling, talking, hearing, or seeing; (6) “rehabilitation specialist” means a person who is a certified insurance rehabilitation specialist, a certified rehabilitation counselor, or a person who has equivalent or better qualifications as determined under regulations adopted by the department; (7) “remunerative employability” means having the skills that allow a worker to be compensated with wages or other earnings equivalent to at least 60 percent of the worker's gross hourly wages at the time of injury; if the employment is outside the state, the stated 60 percent shall be adjusted to account for the difference between the applicable state average weekly wage and the Alaska average weekly wage.