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 85-15-7 - Payment of Indemnity Benefits

Current through Register Vol. XLI, No. 28, July 12, 2024
7.1. 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.