§ 27-14-404 — Temporary total disability; benefits; determination of eligibility; exceptions for volunteers or prisoners; period of certification limited; temporary light duty employment

(a) If after a compensable injury is sustained and as a
result of the injury the employee is subject to temporary total
disability as defined under W.S. 27-14-102(a)(xviii), the
injured employee is entitled to receive a temporary total
disability award for the period of temporary total disability as
provided by W.S. 27-14-403(c). The period for receiving a
temporary total disability award under this section for injuries
resulting from any one (1) incident or accident shall not exceed
a cumulative period of twenty-four (24) months, except that the
division pursuant to its rules and regulations and in its
discretion may in the event of extraordinary circumstances award
additional temporary total disability benefits. The division's
decision to grant such additional benefits shall be reviewable
by a hearing examiner only for an abuse of discretion by the
division.
(b) Any employee awarded benefits under W.S. 27-14-405 or
27-14-406 is not eligible for benefits under subsection (a) of
this section unless the employee has returned to gainful
employment and following employment, undergoes additional
surgery not reasonably contemplated before the award for
permanent impairment or disability and then only for a
reasonable period of recuperation, confinement for medical care
during the actual period of confinement or unless application is
made and an award is granted under W.S. 27-14-605.
(c) Payment under subsection (a) of this section shall
cease prior to expiration of the twenty-four (24) month maximum
period specified under subsection (a) of this section if:
(i) Recovery is complete to the extent that the
earning power of the employee at a gainful occupation for which
he is reasonably suited by experience or training is
substantially restored; or
(ii) The employee has an ascertainable loss,
qualifies for benefits under W.S. 27-14-405 or 27-14-406 and the
first monthly payment pursuant to either of those sections has
been issued to the employee.
(d) Disability payments under this section shall not be
allowed for the first three (3) days of disability unless the
incapacity extends beyond eight (8) days. If payments cease for
a period of eight (8) days or more, the employee may apply for
reinstatement under W.S. 27-14-605 and any award granted shall
be treated as an initial award. In determining the period of
disability, the day the disability occurred shall be included
unless the employee received full payment of wages for that day.
No employee shall be forced to use sick leave before applying
for or instead of benefits under this section. Benefits under
subsection (a) of this section shall not be paid if:
(i) An employee or his personal representative fails
to file a claim for benefits within thirty (30) days after the
first day immediately succeeding the first thirty (30) days of
any certified period of temporary total disability;
(ii) A claim is filed without the signature of the
claimant and certification by the attending health care
provider; or
(iii) An employee is receiving unemployment
compensation under W.S. 27-3-101 through 27-3-704.
(e) Notwithstanding subsection (a) of this section, any
volunteer or mine rescue team member covered under this act and
sustaining a temporary total disability in the line of duty
shall receive the maximum benefit allowable under this section.
(f) Any individual serving time in any penal or
correctional institution who is an employee under this act or
any probationer or parolee not covered by a qualifying
employer-employee relationship performing work pursuant to court
order is not eligible for benefits under this section for
injuries suffered during the period of incarceration, probation
or parole. Upon release from the penal or correctional
institution or upon completion of probation or parole, any
remaining benefits for which the individual would otherwise
qualify for under this section shall be paid from and after the
date of release or completion. In addition, any individual
classified as a school-to-work participant under this act is not
eligible for benefits under this section for injuries suffered
during the participation in a school-to-work program activity.
(g) Only a health care provider may certify temporary
total disability under this act. The length of time of the
initial certification or recertification of temporary total
disability shall be established by the department after
considering the recommendation of the health care provider and
current medical literature. Subject to W.S. 27-14-609, the
employer, employee or division may request recertification of
the period of temporary total disability at intervals of not
less than sixty (60) days, provided that in the event of
extraordinary circumstances, the division may reconsider
recertification at any time. The temporary total disability
shall not exceed the period allowed by W.S. 27-14-404(a).
(h) Payment under subsection (a) of this section shall be
suspended if the injured employee fails to appear at an
appointment with his health care provider. Payment shall be
suspended under this subsection until such time as the employee
appears at a subsequent rescheduled appointment. Payment shall
not be suspended for failing to appear at an appointment if the
employee notifies the case manager or the division prior to the
appointment or within twenty-four (24) hours after missing the
appointment and the division determines, after recommendation by
the case manager, that the employee made all reasonable efforts
to appear at the appointment. At the time of the first benefit
payment under this section, the division shall notify the
employee of the requirements and other provisions of this
subsection, including the procedures to be followed in notifying
the case manager or the division. For purposes of this
subsection, health care provider includes physical and
occupational therapists.
(j) An employer may make a written offer of temporary
light duty work to an employee receiving temporary total
disability under subsection (a) of this section. The offer
shall be a bona fide offer on a form supplied by the division,
stating with specificity the proposed hours of employment,
starting date, wage and physical or other functional capacity
requirements of the light duty work. If the employee accepts
the offer, the temporary total disability award shall cease and
the employee shall receive a temporary light duty award, subject
to the following terms and conditions:
(i) After notice to the employer, the health care
provider who certified temporary total disability has certified
on the light duty work agreement that the employee is released
to perform the light duty work described in the agreement;
(ii) All periods of light duty work may not exceed
one (1) year cumulatively for any one (1) injury;
(iii) The temporary light duty assignment commences
not less than fourteen (14) days following the written offer;
(iv) Payment of the temporary light duty award shall
cease as provided for temporary total disability under
subsection (c) of this section or if the employee's actual
monthly earnings from all sources when combined with the
temporary light duty award exceed ninety-five percent (95%) of
the employee's actual monthly earnings at the time of injury;
(v) The employer shall provide the division before
commencement of the light duty work with a copy of the light
duty work agreement signed by the employer and the employee, and
shall report to the division by the fifteenth of each month the
employee's hours and rate of pay for the previous month;
(vi) The temporary total disability award of any
employee refusing a bona fide written offer of temporary light
duty work pursuant to this subsection shall be reduced by two-
thirds (2/3) unless the employee provides written proof to the
employer and the division of enrollment by the employee in any
collegiate, vocational retraining, general education development
or other program approved by the division which is designed to
retrain the employee for employment in an occupation other than
that previously offered by the employer; and
(vii) The temporary light duty award under this
subsection and the balance of a temporary total disability award
under paragraph (vi) of this subsection shall not be charged to
the employer's experience rating established under W.S.
27-14-201(d).
(k) If the employer objects to a division determination
that an injury is compensable and the employee's health care
provider has certified the employee as temporarily totally
disabled, an injured worker may request an interim benefit while
his case is under appeal. The amount of the benefit will be
calculated at the temporary total disability rate as determined
under W.S. 27-14-403(c) and shall be paid for up to three (3)
months until a final compensability decision by a hearing
examiner is issued or until the expiration of the period of
certified temporary disability, whichever occurs first. The
period during which the interim benefit is received shall be
included in the time period allowed under W.S. 27-14-404(a). The
experience rating of the employer against whom a claim is made
shall not be charged for the interim benefit if the injury is
determined after hearing not to be compensable. Only one (1)
interim benefit under this subsection may be awarded per injury.