W. Va. Code R. § 85-5-5 - Monitoring of PTD Recipients

5.1. The Commission, self-insured employer, or private carrier shall continuously monitor permanent total disability awards and may reopen a claim for reevaluation of the continuing nature of the disability and possible modification of the award. In evaluating whether to reopen a claim, the Commission, self-insured employer, or private carrier may employ one (1) or more of the following methods:

a. Require the PTD Recipient to provide documents as more fully set forth in Section 4 above and other information to the Commission, self-insured employer, or private carrier, including, but not limited to, tax returns, financial records, affidavits demonstrating level of income, recreational activities, work activities, and any other information set forth in Section 3.1.a.-r. of this Rule;

b. Require the PTD Recipient to appear under oath before the Commission, self-insured employer, or private carrier or its duly authorized representative and answer questions;

c. Any claimant who willfully fails to provide the information called for in Section 5.1.a. or willfully fails to appear as required by Section 5.1.b. shall have his or her permanent total disability benefits suspended. The suspension shall remain in effect until the PTD Recipient has fully complied with the Commission's, self-insured employer's, or private carrier's request. Benefits will be reinstated prospectively if and when the PTD Recipient complies with the Commission's, self-insured employer's, or private carrier's request, but the benefits lost during the suspension shall not be paid.

5.2. If the Commission, self-insured employer, or private carrier concludes, in its sole discretion, that there exists good cause to believe that the PTD Recipient no longer meets the eligibility requirements of West Virginia Code Section 23-4-6(n), the claim may be reopened after providing the PTD Recipient 30 days written notice.

5.3. Upon reopening, the Commission, self-insured employer, or private carrier may modify the PTD award or reevaluate the continuing nature of the PTD Recipient's disability. The eligibility requirements for evaluating a PTD Recipient's permanent total disability status shall be the requirements, including any vocational standards, stated in Chapter 23 at the time of a claim's reopening, regardless of date of injury or date of award. If appropriate, the Commission, self-insured employer, or private carrier, in its sole discretion, may process the reopening through the reviewing body or through any other medical review process.

5.4 Upon reopening, the Commission, self-insured employer, or private carrier may take evidence, have the claimant evaluated, make findings of fact and conclusions of law and issue a Final Order that 1) shall vacate, modify or affirm the award; 2) require the offset of any benefits being paid to the PTD Recipient due the PTD Recipient's receipt of benefits from a retirement plan, wage replacement plan, salary continuation plan or other benefit plan provided by any current or former employer as more fully provided for in West Virginia Code Section 23-4-1 d(f), as that provision may be amended from time to time; 3) may award any rehabilitation benefits as more fully provided for in West Virginia Code Section 23-4-9, as that section may be amended from time to time; or 4) may otherwise modify the PTD Award as determined appropriate in the sole discretion of the Commission, self-insured employer, or private carrier.

a. The Commission, self-insured employer, or private carrier shall issue a proposed order setting forth its findings, which shall become effective in 120 days from the date of the order unless the injured worker submits evidence within 90 days of the proposed order establishing that the proposed action is not supported by the weight of the evidence submitted.

5.5. The PTD Recipient's former employer shall not be a party to the reevaluation, but shall be notified of the reevaluation and may submit any information to the Commission, self-insured employer, or private carrier as the employer may elect.

5.6. In the event the claimant retains his or her award following the reevaluation, the PTD Recipient shall be reimbursed his or her costs in obtaining one evaluation on each issue during the course of the reevaluation with the reimbursement being made from the workers' compensation fund.

5.7. Upon being identified as a candidate for reevaluation, an injured worker shall be entitled to legal counsel and the injured worker's attorneys' fees incurred in defending the award shall be paid by the Commission, self-insured employer, or private carrier. The attorney will be paid $110 per each hour worked through a final decision by the Office of Judges, up to a maximum of $3,500. The attorney will be paid $110 per hour worked for any appellate work at the Board of Review and West Virginia Supreme Court of Appeals, up to a maximum additional $1,500. The fee shall be payable only upon the issuance of a decision by the West Virginia Supreme Court of Appeals, or a lower jurisdiction if an appeal is not taken. The hours worked shall begin to accrue upon the injured workers' receipt of a Commission, self-insured employer, or private carrier notice identifying him or her for review. The maximum attorney fee allowable under this section may be waived in extraordinary cases in the sole discretion of the Commission, self-insured employer, or private carrier.

5.8 The reopening and reevaluation process shall not apply to PTD Awards granted pursuant to West Virginia Code Section 23-4-6(m).

5.9 The Commission's, self-insured employer's, or private carrier's Final Order, issued pursuant to Section 5.4 shall be a protestable Order. The Commission's, self-insured employer's, or private carrier's reopening and other actions set forth in Section 5.1-5.3 shall not be protestable.

Notes

W. Va. Code R. § 85-5-5