West Virginia Code of State Rules › Agency 85 - Workers' Compensation › Title 85 - PROCEDURAL RULE WORKERS' COMPENSATION RULES OF THE WEST VIRGINIA INSURANCE COMMISSIONER › Series 85-15 - Vocational And Physical Rehabilitation › Section 85-15-2 - Purpose of Rule; Cooperation

Current through Register Vol. XLI, No. 28, July 12, 2024
2.1. It is a goal of the workers'
				compensation program to assist workers to return to suitable gainful employment
				after a compensable injury. The optimal goal of the rehabilitation process
				should be to achieve the goals of the priority hierarchy set forth in Section
				4.1. In order to assist injured workers to return to such employment and to
				encourage and assist employers in providing suitable gainful employment to
				injured employees, it shall be a priority of the Commission, Insurance
				Commissioner, self-insured employer or private carrier, whichever is
				applicable, to achieve early identification of individuals likely to need
				rehabilitation services and to assess/evaluate the rehabilitation needs of
				these injured workers. It shall be the goal of the Commission, Insurance
				Commissioner, self-insured employer or private carrier, whichever is
				applicable, and all interested parties to return injured workers to employment
				which shall be comparable in work and pay to that which the individual
				performed prior to the injury. If a return to comparable work is not possible,
				the goal of rehabilitation shall be to return the individual to alternative
				suitable gainful employment, using all possible alternatives of job
				modification, restructuring, reassignment and training, so that the individual
				will return to productivity with his or her employer or, if necessary, with
				another employer. It is the shared responsibility of the employer, the
				employee, the physical rehabilitation service provider, the qualified
				rehabilitation professional, the treating physician(s) and the Commission,
				Insurance Commissioner, self-insured employer or private carrier, whichever is
				applicable, to cooperate in the development of a rehabilitation process
				designed to promote re-employment for the injured employee.
2.2. Every injured worker and his or her
				employer are required pursuant to this rule to participate in rehabilitation
				evaluations, and the development, implementation, and completion of
				rehabilitation plans. Additionally, the Commission, Insurance Commissioner,
				self-insured employer or private carrier, whichever is applicable, the injured
				worker, his or her employer, his or her treating physician(s), the physical
				rehabilitation service provider, and the qualified rehabilitation professional
				are required to share in the responsibility for the success of the individual
				injured worker's rehabilitation.
a. An injured
				worker who is fully participating in an authorized physical rehabilitation plan
				or in an authorized vocational rehabilitation plan for modified return to work,
				job search, training or other approved service, and who shows satisfactory
				progress toward completion of the plan is eligible to receive temporary total
				rehabilitation or temporary partial rehabilitation benefits. An injured worker
				who fails, without a showing of good cause, to participate in a rehabilitation
				evaluation, to participate in an authorized rehabilitation plan, or fails to
				show satisfactory progress toward completion of the plan, may be denied any
				applicable form of benefits or may have temporary rehabilitation benefits
				suspended effective the date the worker ended his or her participation in the
				rehabilitation plan, ceased to be cooperative in and/or comply with the
				rehabilitation plan, or ceased making satisfactory progress toward completion
				of the plan. The determination of whether a claimant is making satisfactory
				progress, within the meaning of this section, shall be within the sole
				discretion of the Commission, Insurance Commissioner, self-insured employer or
				private carrier, whichever is applicable.
b. In determining whether an injured worker
				has cooperated in and/or complied with the rehabilitative effort, the following
				standards are to be used:
1. Whether medical,
				physical rehabilitation and/or and vocational opinion substantially concur that
				the treatment, service, or program is indicated to bring about a return to
				employment;
2. Whether it is
				reasonably safe and not attended by unusual suffering or risk for the injured
				worker to participate;
3. Whether
				it is likely that the treatment, service, or program will produce measurable
				physical and/or vocational improvement; and
4. Whether a person of ordinary prudence and
				courage would participate in the treatment, service, or program for his or her
				own betterment, regardless of compensation.
c. Employers who cooperate with the
				rehabilitation assessment/evaluation process and fully participate in
				authorized rehabilitation plans benefit from the rehabilitation process by
				minimizing the costs associated with work-related injuries. The Commission,
				Insurance Commissioner, or private carrier, whichever is applicable, must
				consider an employer's workers' compensation vocational rehabilitation record
				in assigning an experience rating if the employer is a subscriber to the extent
				allowed by legislative rules governing ratemaking and underwriting practices
				and Chapter 23 of the West Virginia Code. Employer's cooperation regarding
				rehabilitation efforts and plans includes, but is not limited to: full
				participation in the rehabilitation evaluation, reasonable efforts to provide
				reemployment opportunities to injured workers upon full release or release with
				restrictions, reasonable efforts to provide assistance to the injured worker
				returning to transitional, part time, modified or alternate
				employment.
d. This rule
				establishes the minimum standard for an employer providing assistance to an
				injured worker to return to employment; it is not intended to limit additional
				assistance an employer may provide a worker.