Senate Bill No.5
(By Senator Jackson)
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[Introduced January 9, 2002; referred to the Committee
on the Judiciary.]
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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
the 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
the vocational rehabilitation purposes as provided in this
section unless authorized by the commissioner prior to the
rendering of such the
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 expenses is an
expense within the meaning of section three of this article and
shall be is 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 only be are payable only
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.