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Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By Steven K Wellman Of Jenkins Fenstermaker, PLLC on 09/26/2022
Employers’ WV Temporary Total Disability Questions Answered

Employers served by the workers’ compensation defense team at Jenkins Fenstermaker, PLLC often have questions about WV temporary total disability (TTD) benefits, including acceptable reasons for stopping WV TTD benefits, when reopening a workers’ compensation claim for TTD benefits is permitted, and more. In this second blog in a series of two, we answer some of the frequently asked questions we receive regarding TTD benefits in West Virginia.

Common WV Temporary Total Disability Benefit Questions

The first blog in the series provides answers to these common WV workers’ compensation questions:

  • What is the rate of pay for WV temporary total disability benefits?
  • What is the maximum period a claimant may receive WV TTD benefits?
  • Is there a waiting period for WV temporary total disability benefits?
  • What is the prospective period for WV TTD benefits?

While legislation and workers’ compensation rules are always changing, in this second blog, our attorneys offer point-in-time answers to the following questions:

To see the information covered here in one place, get the WV TTD questions edition of “Brief Facts,” a cheat sheet of sorts that gives employers a quick reference with answers to these important and often-posed WV workers’ compensation questions.

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What Reasons Permit Stopping WV Temporary Total Disability Benefits?

WV temporary total disability benefits can be suspended for several reasons under WV Code § 23-4-7a. Temporary total disability benefits should be suspended when a claimant returns to work, is released by his or her physician to return to work, or reaches the maximum TTD period of 104 cumulative weeks of benefits. However, there are additional causes for stopping WV TTD benefits:

  • The claimant reaches maximum medical improvement (MMI) or is ready for a permanent disability evaluation, based on the opinion of the employee’s treating physician or an independent medical examination (IME) physician;
  • Evidence indicates that the claimant has reached MMI;
  • Evidence indicates that the claimant is engaged in abuse as defined in WV CSR §§ 85-1-14.1 to 14.4.

 Claimant abuse includes participation in physical activities that are inconsistent with the claimant’s compensable injury; failure to undergo necessary treatment; working at an unreported job while receiving TTD benefits; making false or misleading statements to the responsible party or a health care provider to secure any benefit; and altering, falsifying, destroying, or concealing workers’ compensation related records.

Finally, if the employer or workers’ compensation insurance carrier offers a managed health care plan, a claimant’s failure to select a treating physician from the managed health care plan within 60 days of notification to do so will also result in the suspension of medical and TTD benefits.

What Is the Procedure for Stopping WV TTD Benefits?

To stop payment of benefits, the insurer, third-party administrator, or employer must issue a non-objectionable letter notifying the claimant that TTD benefits are suspended. The notice must give the claimant a reasonable amount of time to submit evidence that benefits should be continued, typically 30 days.

The next step is to issue an objectionable letter notifying the claimant that the claim is closed for TTD benefits. This letter should also inform the claimant that he or she has a right to request a permanent partial disability (PPD) evaluation.

The objectionable letter must contain this clause: "The claimant may object to this decision within 60 days from the date of receipt of this decision or notice. The claimant must send a written objection, along with a copy of this decision, to the Workers’ Compensation Board of Review, P.O. Box 2628, Charleston, WV 25329-2628, and must serve a copy of the objection upon all parties to a claim."

This procedure must be followed for any reasons that permit stopping WV TTD benefits as described previously. The process for review of WV workers’ compensation objections changed after July 1, 2022, when the Workers’ Compensation Office of Judges ceased to exist. Objections are now filed with the WV Workers’ Compensation Board of Review. Otherwise, the procedure for initiating litigation in WV workers’ compensation cases is unchanged, though changes resulting from the creation of the WV Intermediate Court of Appeals do apply in other areas of workers’ compensation litigation.

When Is Reopening a Workers’ Compensation Claim Permitted?

Under WV Code § 23-4-16, claimants have five years to request the reopening a WV workers’ compensation claim for additional TTD benefits. The five-year period begins on the date of the letter closing the claim. The claimant must show that the compensable injury has progressed or been aggravated or that there is a new fact or set of facts not previously considered regarding the compensable injury that rendered the claimant temporarily and totally disabled.

When a reopening request is received, an objection letter must be issued addressing the request. As of July 1, 2022, objections must be filed with the Board of Review.

What Other Situations Can Result in the Closure of WV TTD Benefits?

WV TTD benefits also can be stopped due to retirement, based on the provisions of WV CSR 85-1-5.2. If the claimant retires, as long as he or she remains retired, the claimant is disqualified from TTD benefits received as a result of an injury received from the place of employment from which he or she retired unless an application for benefits was received before his or her retirement.

An individual who has retired is also barred from reopening a workers’ compensation claim for TTD benefits when an earlier claim was filed in connection with an injury received at the place of employment from which he or she retired. Payment of benefits that a claimant is otherwise due is not stopped if the retiree has returned to work and a compensable injury occurs or if the compensable injury causes the individual to retire.

A claimant is also not eligible for WV TTD benefits when he or she would normally not be working. For example, when a school board employee would typically be on summer break, he or she is not eligible for benefits during that period.

When a period of temporary total disability includes a reasonably ascertainable period during which the claimant would not have been performing work for any employer, then TTD benefits shall not be paid during that period, according to WV CSR 85-1-5.3. This section does not apply to periods caused by a reduction in force, lay-off, or time-off provided in connection with an employee benefit.

Contact the Jenkins Fenstermaker Workers’ Compensation Defense Team

The laws and administrative rules that govern TTD benefits and workers’ compensation claims, in general, will undoubtedly be subject to additional changes in the future. Employers need the counsel and representation of experienced and knowledgeable WV workers’ compensation defense attorneys to navigate and manage these matters efficiently and effectively.

Attorneys Steven Wellman, James “Mac” Heslep, and Jillian Moore help clients understand how WV workers’ compensation laws affect their business and manage and defend against claims accordingly. If you have WV temporary total disability questions or other concerns related to WV workers’ compensation matters, contact the Jenkins Fenstermaker team by calling (304) 523-2100 or completing this online contact form.