W. Va. Code R. § 85-20-70

Current through Register Vol. XLI, No. 24, June 14, 2024

Section 85-20-70 - Injured Employee's Responsibilities Concerning Medical Examination and Treatment. (Effective Date: - February 1, 2005

70.1. Examination and treatment.

The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may order an injured employee to report for examination and may further order him to undergo such treatment or hospitalization as is indicated in the particular case. It shall be the duty of the injured employee to comply fully and promptly with any such order issued by the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable.

70.2. Violation of rule.

a. If violation of any provision of this rule, or refusal to comply with any order of the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, issued as provided herein, should result in an increase in the duration of temporary disability or in the degree of permanent disability, such violation or refusal will be considered in determining the compensation, if any, to be awarded and no compensation will be awarded for extension or increase of disability caused thereby.

b. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, may suspend benefits being paid to a claimant if the claimant refuses, without good cause, to undergo or fully participate in the examinations or needed treatments provided for in W. Va. Code § 23-4-7a. Good cause shall consist of the following:

1. Compelling evidence that the examination or treatment would have little, if any, positive effect on the claimant's injury;

2. Compelling evidence that no ordinarily prudent and reasonable person would have submitted to the examination or needed treatment;

3. Compelling evidence that the examination or treatment would pose a danger to the life or health of the claimant or require extraordinary suffering;

4. A consensus of medical opinions establishing that the examination or treatment would not effect a cure or would not at least improve the likelihood that the claimant could return to gainful employment; and

5. Compelling evidence that the prognosis for success and recovery were unreasonably low.

c. Failure to attend a single scheduled examination or treatment shall not be grounds to suspend benefits. However, failure to attend two (2) or more consecutively scheduled examinations or treatments without clear justification, regardless if the examinations or treatments were scheduled for a related purpose, may, in the Commission's, Insurance Commissioner's, private carrier's or self-insured employer's, whichever is applicable, sole discretion, constitute grounds to suspend benefits. Also, a pattern of failing to attend scheduled examinations or treatments shall constitute grounds for the suspension of benefits.

d. A claimant whose benefits are suspended under this rule shall not be entitled to benefits from the date the relevant examination or treatment was not undergone until such time as the examination or treatment is undergone and notice of such is provided to the Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable. If benefits are re-instated, any overpayment will be deducted from the re-instated benefits at a reasonable rate until the overpayment is recouped. The unpaid balance of the overpayment, if any, will be recovered from any future award to the claimant.

e. The Commission, Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall enter a protestable order notifying the claimant of the suspension of benefits and shall serve the order on all of the parties to the claim.

W. Va. Code R. § 85-20-70