Current through Register Vol. XLI, No. 45, November 8, 2024
Section 85-15-2 - Purpose of Rule; Cooperation2.1. 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; and4. 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.2.3. In making a ruling that a party has failed to cooperate or comply, the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, shall issue a protestable order. Where there are disagreements between the injured worker, the employer, or the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, so as to cause the filing of a protest, the parties are encouraged to utilize the mediation process provided for by W. Va. Code § 23-5-9(b).2.4. Physicians and other health care providers are also responsible for assisting and encouraging injured workers to return to suitable gainful employment and providing assistance to employers in determining accommodations for each injured worker. Physician and other health care provider cooperation regarding rehabilitation efforts and plans includes, but is not limited to: the rehabilitation evaluation, full participation in providing updated medical documentation pertaining to current and anticipated treatment plans and restrictions to the Commission, Insurance Commissioner, self-insured employer or private carrier, whichever is applicable, injured worker, employer, and other treating or consulting physician or other health care provider, encouraging and participating in communications between the injured worker and his or her employer, familiarity with the injured worker's essential job functions, cooperating with and timely responding to rehabilitation providers, and provision of medical documentation to assist in returning to transitional, part-time, modified or alternate employment. Failure by a physician or other health care provider to cooperate in rehabilitation efforts may result in suspension or termination of the physician or health care provider pursuant to W. Va. Code § 23-4-3c.2.5. Providers of vocational rehabilitation services and qualified rehabilitation professionals are encouraged to assist injured workers, employers, physicians and other health care providers to fully participate and cooperate in the rehabilitation process. The providers and qualified rehabilitation professional must be knowledgeable of all applicable legislative rules, exempt legislative rules, and statutory requirements that relate, in any way, to the provision of rehabilitation services. Failure of a vendor and/or a qualified rehabilitation professional to be fully cooperative in the rehabilitation process may result in suspension or termination of the vendor and/or qualified rehabilitation provider and/or his/her employer/primary contractor pursuant to W. Va. Code § 23-4-3c.