Senate Bill No. 651

(By Senator Jackson, By Request)

____________

[Introduced March 26, 2001; referred to the Committee on the Judiciary; and then to the Committee on Finance.]

____________




A BILL to amend and reenact section nine, article four, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to increasing the expenditure limit for vocational rehabilitation to twelve thousand dollars.

Be it enacted by the Legislature of West Virginia:

That section nine, article four, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:

ARTICLE 4. DISABILITY AND DEATH BENEFITS.

§23-4-9. Physical and vocational rehabilitation.

(a) The Legislature hereby finds that it is a goal of the
workers' compensation program to assist workers to return to suitable gainful employment after an injury. In order to encourage workers to return to employment and to encourage and assist employers in providing suitable employment to injured employees, it shall be a priority of the commissioner to achieve early identification of individuals likely to need rehabilitation services and to assess the rehabilitation needs of these injured employees. It shall be the goal of rehabilitation 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 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. The Legislature further finds that it is the shared responsibility of the employer, the employee, the physician and the commissioner to cooperate in the development of a rehabilitation process designed to promote reemployment for the injured employee.
(b) In cases where an employee has sustained a permanent
disability, or has sustained an injury likely to result in temporary disability in excess of one hundred twenty days, and such the fact has been determined by the commissioner, the commissioner shall at the earliest possible time determine whether the employee would be assisted in returning to remunerative employment with the provision of rehabilitation services. and If the commissioner determines that the employee can be physically and vocationally rehabilitated and returned to remunerative employment by the provision of rehabilitation services including, but not limited to, vocational or on-the-job training, counseling, assistance in obtaining appropriate temporary or permanent work site, work duties or work hours modification, by the provision of crutches, artificial limbs, or other approved mechanical appliances, or medicines, medical, surgical, dental or hospital treatment, the commissioner shall forthwith develop a rehabilitation plan for the employee and, after due notice to the employer, expend such an amount as may be necessary for the aforesaid purposes: Provided, That such expenditure for vocational rehabilitation shall may not exceed ten twelve thousand dollars for any one injured employee: Provided, however, That no payment shall may be made for such vocational rehabilitation purposes as provided in this section unless authorized by the commissioner prior to the rendering of such physical or vocational rehabilitation, except that payments shall be made for reasonable medical expenses without prior authorization if sufficient evidence exists which would relate the treatment to the injury and the attending physician or physicians have requested authorization prior to the rendering of such treatment: Provided further, That payment for physical rehabilitation, including the purchase of prosthetic devices and other equipment and training in use of such devices and equipment, shall be considered are expenses within the meaning of section three of this article and shall be are subject to the provisions of sections three, three-a, three-b and three-c of this article. The provision of any rehabilitation services shall be pursuant to a rehabilitation plan to be developed and monitored by a rehabilitation professional for each injured employee. At the request of the claimant, the commissioner shall reimburse the claimant for travel at any rate requested by the claimant up to the mileage reimbursement rate set by the travel management unit of the purchasing division: And provided further, That the total reimbursement for all vocational rehabilitation expenses does not exceed the twelve thousand dollar limit set forth in this subsection.
(c) In every case in which the commissioner shall order orders physical or vocational rehabilitation of a claimant as provided herein, the claimant shall, during the time he or she is receiving any vocational rehabilitation or rehabilitative treatment that renders him or her totally disabled during the period thereof, be compensated on a temporary total disability basis for such period.

(d) In every case in which the claimant returns to gainful employment as part of a rehabilitation plan, and the employee's average weekly wage earnings are less than the average weekly wage earnings earned by the injured employee at the time of the injury, he or she shall receive temporary partial rehabilitation benefits calculated as follows: The temporary partial rehabilitation benefit shall be is seventy percent of the difference between the average weekly wage earnings earned at the time of the injury and the average weekly wage earnings earned at the new employment, both to be calculated as provided in sections six, six-d and fourteen of this article as such the calculation is performed for temporary total disability benefits, subject to the following limitations: In no event shall such are the benefits be subject to the minimum benefit amounts required by the provisions of subdivision (b),
section six of this article, nor shall such may the benefits exceed the temporary total disability benefits to which the injured employee would be entitled pursuant to sections six, six-d and fourteen of this article during any period of temporary total disability resulting from the injury in the claim: Provided, That no temporary total disability benefits shall may be paid for any period for which temporary partial rehabilitation benefits are paid. The amount of temporary partial rehabilitation benefits payable under this subsection shall be reviewed every ninety days to determine whether the injured employee's average weekly wage in the new employment has changed and, if such this change has occurred, the amount of benefits payable hereunder shall be adjusted prospectively. Temporary partial rehabilitation benefits shall are only be payable when the injured employee is receiving vocational rehabilitation services in accordance with a rehabilitation plan developed under this section.
(e) The commissioner shall promulgate propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, for the purpose of developing a comprehensive rehabilitation program which will assist injured workers to return to suitable gainful employment after an
injury in a manner consistent with the provisions and findings of this section. Such The rules shall provide definitions for rehabilitation facilities and rehabilitation services pursuant to this section.
(f) The reenactment of the provisions of this section during the regular session of the Legislature in the year one thousand nine hundred ninety-nine is for the purpose of reestablishing the rehabilitation program heretofore created by virtue of the provisions of this section and the rules promulgated pursuant thereto for all injured employees who sustained injuries on or after the first day of July, one thousand nine hundred ninety-eight. To this end, the performance council is directed to reenact the rules promulgated under the prior enactment of this section within fifteen days of the effective date hereof and the commissioner shall promulgate any revisions to the rules for review by the performance council on or before the first day of July, one thousand nine hundred ninety-nine.



NOTE: The purpose of this bill is increase the expenditure limit for vocational rehabilitation from $10,000 to $12,000.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.