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TITLE 126

LEGISLATIVE RULE

BOARD OF EDUCATION

SERIES 158

Workers's Compensation Benefits (5612)



'126-158-1. General.



1.1. Purpose - The purpose of this policy is to establish procedures for compliance with West Virginia Code '18A-4-10 and '23-4-1 et seq., related to county board of education employees who sustain a work-related injury and are awarded Workers= Compensation benefits and to prohibit an employee from receiving compensation for personal and or annual leave in excess of the amount that is required, when added to the Workers= Compensation benefits, to equal the amount of compensation regularly paid the employee.



1.2. Authority - West Virginia Constitution, Article XII, '2 and West Virginia Code 18-2-5, 18A-4-10, 23-2-1, 23-4-1 et seq., and 23-5A-3.



1.3. Filing Date - October 22, 2002.



1.4. Effective Date - November 21, 2002.



1.5. Repeal of Former Rule - This policy repeals and replaces 126CSR158, West Virginia Board of Education Policy 5612, filed November 30, 1989 and effective December 20, 1989.



'126-158-2. Applicability.



2.1. This policy applies to all county board of education employees who sustain a work-related injury and are awarded Workers= Compensation benefits.



'126-158-3. Definitions.



3.1. Eligible to receive TTD benefits - Having been ruled eligible by Workers= Compensation to receive Temporary Total Disability (TTD) benefits, regardless of whether the employee is actually receiving benefits or has opted to receive personal leave (or annual leave, if requested after having exhausted personal leave).

3.2. Medical professional - A person licensed according to the laws of the State of West Virginia to practice medicine or a medical practitioner approved by the Workers= Compensation Division.

3.3. Net value - Gross wages less employee deductions for state and federal income taxes, FICA and Medicare, and contributions to a teachers= retirement system.

3.4. Separate dischargeable offense - Misconduct by the injured employee wholly unrelated to the injury or the absence from work resulting from the injury. This shall not include absence resulting from the injury or from aggregation of absence due to the injury with any other absence from work.

3.5. Personal leave - An earned employee benefit of paid time off as specified in West Virginia Code '18A-4-10. Accrued annual leave, if requested by the employee, may be utilized in circumstances when personal leave is exhausted.



3.6. TTD benefits - Temporary Total Disability Benefits paid by Workers= Compensation.



3.7. Work-related injury - An injury or illness having been determined to be compensable by the Workers= Compensation Division.



'126-158-4. Administration.



4.1. County boards of education shall administer Workers= Compensation claims and employee leave in accordance with all applicable statutes, rules, regulations, procedures, and local policies.



4.2. An employee who sustains a work-related injury shall submit an Election of Option form (see Attachment 1) to the county board of education=s payroll office within three (3) working days of the date of the injury. The Election of Option form will designate the employee=s choice of receiving either TTD benefits only for the period of absence from work, personal leave compensation, or a combination of both. The payroll office shall attach the original Election of Option form to the Employer=s Report of Injury form (WC-3) and forward both to the Workers= Compensation Division.



4.3. An employee who is incapacitated and unable to submit the Election of Option form shall be granted accrued personal leave, then accrued annual leave if the employee is entitled to annual leave, after exhausting personal leave. An Election of Option Form must be completed by an appropriate individual on behalf of the employee as prescribed by the employer.



4.4. If a previous compensable Workers= Compensation claim is reopened after the effective date of this policy and additional TTD benefits are paid, the procedures outlined in this policy will be in effect and the employee must complete a new Election of Option form.



'126-158-5. Election of Option.



5.1. Election to receive TTD benefits only:



5.1.1. An employee may elect to receive TTD benefits only by selecting Option I on the Election of Option form (see Attachment 1). The employee will not receive leave compensation from the county board of education, except for the initial period prior to receiving a benefit check from the Workers' Compensation Division.



a. Employees of county boards of education continue to accrue seniority credit while receiving TTD benefits during absences from work due to a work-related, compensable injury, but do not accrue credit for years of experience.



b. Personal leave shall accrue while an employee is absent from work receiving TTD benefits, pursuant to the provisions of West Virginia Code '18-4-10.



c. Any legal school legal school holidays, election days, other noninstructional days such as outside school environment (OS), continuing professional development (CE), and teachers-pupil-parent conferences (TP), and inclement weather days occurring during the period when TTD benefits only are being received, will NOT be paid.



5.1.2. When an employee elects to receive TTD benefits only, paid personal leave may be utilized only until the initial benefit check is received.



5.1.3. When the initial TTD check is received, the employee must reimburse his employer the net value of personal leave benefits paid, according to the procedures presented in the Accounting Procedures Manual for County Boards of Education issued by the Office of School Finance. If payment is not made in full at the time the initial TTD check is received, the employee and the employing agency shall complete the Assignment of Future Wages form (Attachment 2). The number of days of paid leave shall be restored to the employee=s leave balance as the repayments are made.



a. Any employee who refuses to reimburse the net value of the paid personal leave shall be subject to disciplinary action and deductions from subsequent paychecks shall be made until the total amount of paid leave used is reimbursed. The deductions will be made in accordance with the West Virginia Division of Labor regulations on wage payments and collections.

b. When leave is restored to an employee, appropriate adjustments shall be made by the employing agency=s payroll office to obtain credit for the agency=s share of contributions for social security and retirement and for the deductions that were withheld from the employee=s personal leave pay and to make any necessary adjustments in taxable wages, tax deductions, retirement contributions, FICA and Medicare deductions, and personal leave records.



5.2. Election to receive leave compensation only:



5.2.1. An employee may elect to receive compensation for accumulated personal leave only, or annual leave if requested by the employee, instead of TTD benefits by selecting Option 2 on the Election of Option form (see Attachment 1). The employee is treated the same as any other employee granted personal leave pursuant to West Virginia Code '18-4-10.



a. Employees of boards of education continue to accrue seniority credit while receiving leave compensation during absences from work due to a work-related, compensable injury, and accrue credit for years of experience.



b. Personal leave shall accrue while an employee is absent from work receiving TTD benefits, pursuant to the provisions of West Virginia Code '18-4-10.



c. Any legal school holidays, election days, other noninstructional days such as outside school environment (OS), continuing professional development (CE), and teachers-pupil-parent conferences (TP), and inclement weather days occurring during the period when leave compensation is being received will be paid.

5.2.2. After an employee exhausts his/her accrued personal leave, and accrued annual leave if requested, the employee may start receiving TTD benefits during the remaining absence from work due to a work-related, compensable injury, pursuant to West Virginia Code '23-4-6. The employee is responsible for contacting the Workers= Compensation Division to make this request.



a. Employees of county boards of education continue to accrue seniority credit while receiving TTD benefits during absences from work due to a work-related, compensable injury, but do not accrue credit for years of experience.

b. Personal leave shall accrue while an employee is absent from work receiving TTD benefits, pursuant to the provisions of West Virginia Code '18-4-10.



c. Any legal school holidays, election days, other noninstructional days such as outside school environment (OS), continuing professional development (CE), and teachers-pupil-parent conferences (TP), and inclement weather days occurring during the period when TTD benefits only are being received, will NOT be paid.





5.3. Election to receive a combination of TTD benefits and compensation for accrued leave:



5.3.1. An employee may elect to receive a combination of TTD benefits and compensation for accrued personal leave, or accrued annual leave if requested, by selecting Option 3 on the Election of Option form (see Attachment 1). The employee shall receive leave compensation only to the extent the leave compensation is required, when added to the TTD benefits, to equal the amount of gross wages regularly paid the employee.



5.3.2. Personal leave compensation equal to the employee=s regular gross pay may be paid prior to the award of TTD benefits.



a. If the personal leave compensation paid to the employee prior to the award of TTD benefits, when added to the TTD benefits, is in excess of the employee=s regular gross pay, the excess payment shall be deducted from the employee=s subsequent pay, according to the procedures presented in the Accounting Procedures Manual for County Boards of Education issued by the Office of School Finance. The employee and the employing agency shall complete the Assignment of Future Wages form (Attachment 2). The number of days of paid leave shall be restored to the employee=s leave balance as the deductions are made.



b. Any employee who refuses to have the excess payment deducted from the employee=s subsequent pay until the total amount of the overpayment is recovered shall be subject to disciplinary action. Such deductions will be made in accordance with the West Virginia Division of Labor regulations on wage payments and collections.



c. When leave is restored to an employee, appropriate adjustments shall be made by the employing agency=s payroll office to obtain credit for the agency=s share of contributions for social security and retirement and for the deductions that were withheld from the employee=s personal leave pay and to make any necessary adjustments in taxable wages, tax deductions, retirement contributions, FICA and Medicare deductions, and personal leave records.



5.3.3. The employee=s accrued personal leave days shall be charged only for such days as equal the amount of personal leave compensation required to compensate the employee at the employee=s regular gross rate of pay.



a. Employees of county boards of education continue to accrue seniority credit while receiving leave compensation during absences from work due to a work-related, compensable injury, and may accrue credit for years of experience by use of accrued personal leave.



b. Personal leave shall accrue while an employee is absent from work receiving TTD benefits, pursuant to the provisions of West Virginia Code '18-4-10.



c. Any legal school holidays, election days, other noninstructional days such as outside school environment (OS), continuing professional development (CE), and teachers-pupil-parent conferences (TP), and inclement weather days occurring during the period when leave compensation is being received will be paid.

5.3.4. After an employee exhausts his/her accrued personal leave, and annual leave if requested, the employee may then receive TTD benefits only during the remaining absence from work due to the work-related, compensable injury, pursuant to West Virginia Code '23-4-6.



a. Employees of county boards of education continue to accrue seniority credit while receiving TTD benefits during absences from work due to a work-related, compensable injury, but do not accrue credit for years of experience.



b. Personal leave shall accrue while an employee is absent from work receiving TTD benefits, pursuant to the provisions of West Virginia Code '18-4-10.



c. Any legal school holidays, election days, other noninstructional days such as outside school environment (OS), continuing professional development (CE), and teachers-pupil-parent conferences (TP), and inclement weather days occurring during the period when TTD benefits only are being received, will NOT be paid.



5.3.5. Nothing in this policy prohibits an employee from electing to request a medical leave of absence without pay instead of using personal/annual leave, even if an employee will not be receiving TTD benefits. For example, if an employee is absent from work for only three (3) calendar days due to a work-related, compensable injury, the employee is not eligible for TTD benefits. The employee may, if desired, choose not to use personal leave and instead, request a medical leave of absence without pay.



'126-158-6. Return to Work Notice.



6.1. Workers= Compensation Form WC309, Return to Work Notice, must be completed by the employing agency and be forwarded to the Workers= Compensation Division when the employee returns to work, regardless of which of the preceding options the employee elected.



'126-158-7. Discriminatory Practices.



7.1. West Virginia Code '23-5A-1 et seq. provides that an employer shall not terminate an injured employee while the employee is absent from work due to a work-related, compensable injury and is receiving or is eligible to receive TTD benefits, unless the injured employee has committed a separate dischargeable offense.



7.1.1. A separate dischargeable offense shall mean misconduct by the injured employee wholly unrelated to the injury or the absence from work resulting from the work-related, compensable injury.



7.1.2. A separate dischargeable offense shall not include absence resulting from the injury or from the inclusion or aggregation of absence due to the injury with any other absence from work.



7.2. It shall be a discriminatory practice for an employer to fail to reinstate an employee who has sustained a work-related, compensable injury to the employee=s former position of employment, upon demand for such reinstatement, provided that the position is available and the employee is not disabled from performing the essential duties of the position, with or without accommodations.



7.2.1. If the former position is not available, the employee shall be reinstated to another comparable available position with duties the employee is capable of performing. A comparable position shall mean a position which is comparable in wages, working conditions, and, to the extent reasonable practicable, duties to the position held at the time of injury.



7.2.2. A written statement from a medical professional approving the injured employee=s return to regular employment shall be prima facie evidence that the employee is able to perform his/her duties.



7.2.3. In the event that neither the former position nor a comparable position is available, the injured employee shall have a right to preferential recall to any job which the employee is capable of performing which becomes available after the employee notifies his/her employer that reinstatement is desired.



7.2.4. The right of preferential recall shall be in effect for one year from the day the injured employee notifies the employer that reinstatement is desired. The employee must provide the employer with a current mailing address during the one-year period.



Workers= Compensation

Election of Option Form For

County Board of Education Employees







Employee Name: _______________________________ Date of Injury: _________________________

Social Security No: Claim No. (If known.): ___________________



Employer: ________________________________ _______________________________________ (County Board) Position and Location (School or Other)





To the employee: Please submit this form to your agency payroll office. If you are absent from work due to a work-related injury, you must complete this form within three (3) days of the injury and choose to (1) receive only Temporary Total Disability (TTD) benefits from workers= compensation, (2) receive only compensation for accrued personal leave, or (3) receive a combination of TTD benefits and compensation for accrued personal leave.



Please Note: You will only accrue retirement benefits for that portion of pay attributable to personal leave utilized and actual days worked.





Option 1- Election to receive only Total Temporary Disabilities (TTD) benefits:



I elect to receive only TTD benefits from workers= compensation for the period that I am absent from work due to a work-related compensable injury. I understand that by selecting this option, I will receive compensation for accrued personal leave only until I start receiving TTD benefits. I also understand that after I start receiving TTD benefits, I must reimburse the net value of the paid leave to my employer, who will then restore the personal leave for which I was paid as the repayments are made. Furthermore, I understand that if I fail to reimburse my employer for the net value of the paid leave used, I may be subject to disciplinary action and the amount will be deducted from my future wage payments. After I start receiving TTD benefits, I understand that I will be on a non-paid status. I understand that I will continue to accrue seniority while I am absent from work and receiving TTD due to a work related compensable injury. I will not accrue work-experience credit for incremental pay purposes. I will continue to earn personal leave as long as I remain under contract with the county board of education.





Option 2 - Election to receive only accrued personal leave compensation:



I elect to receive only personal leave compensation instead of Workers= Compensation TTD benefits for the period that I am absent from work due to a work-related compensable injury. While I am receiving paid leave benefits, I understand that I will continue to accrue personal leave and be paid for holidays, inclement weather days, or outside of school environment days that occur during this period. I also understand that while I am receiving paid benefits I will continue to accrue seniority and work-experience credit for incremental pay purposes. After I exhaust all of my personal leave, I understand that I am eligible to receive TTD benefits during any remaining period of absence from work due to a compensable injury, if so requested. I understand that if I choose to receive TTD benefits, I will revert to a non-paid status. I understand that I will continue to accrue seniority while I am absent from work and receiving TTD due to a work related compensable injury. I will not, however, continue to accrue work-experience credit for incremental pay purposes. Once I have been compensated for all of my accrued personal leave days, I am no longer entitled to compensation for any holidays, inclement weather days, and outside of school environment days which occur during the time when I am absent from work due to work-related injury. However, I will continue to earn personal leave as long as I remain under contract with the county board of education.













Option 3 - Election to receive a combination of Temporary Total Disability (TTD) benefits and compensation for accrued personal leave:



I elect to receive a combination of TTD benefits from workers= compensation and personal leave compensation. I understand that I will receive compensation for accrued personal leave until I start receiving TTD benefits. Once I start receiving TTD benefits, I understand that I will receive personal leave compensation only to the extent that the compensation is required, when added to the workers= compensation benefits, to equal the amount of compensation that I am regularly paid. My accrued personal leave days will be charged only for the number of days, or portion thereof, that is required to compensate me at my regular rate of pay.



I also understand that any personal leave compensation that I received during the period prior to the award of TTD benefits, when added to the TTD benefits, that is in excess of my regular gross pay will be deducted from subsequent pays and that the appropriate amount of personal leave will be restored as the deductions are made. Furthermore, I understand that if I refuse to have the excess payment deducted from my subsequent pay, I may be subject to disciplinary action.



I understand that I will continue to accrue seniority while I am absent from work and receiving TTD due to a work-related compensable injury. I will not accrue work-experience credit for incremental pay purposes unless I receive payment from the county board of education totaling one hundred thirty-three full days of employment within an employment term. As long as I have a positive personal leave balance, I am entitled to compensation for all holidays, inclement weather days, and outside of school environment days which occur during the time which I am absent from work due to the work-related injury. Further, I will continue to earn personal leave as long as I remain under contract with the county board of education.





Employee=s Statement: I understand that I must choose one of the above options when I am absent from work due to a work-related compensable injury.





Employee=s Signature ___________________________________ Date Submitted _______________________







TO BE COMPLETED BY THE EMPLOYER - This document was received by:







Employer=s Representative Signature _________________________ Date Received __________________





ASSIGNMENT OF FUTURE WAGES




STATE OF WEST VIRGINIA

COUNTY OF _____________________







I, hereby assign to the _________________ County Board of Education (Employee)



future wages due me from the said county board of education in the total amount of $ _________________________ , (numeric)

Dollars,



which shall be deducted from my future pays in equal amounts of $ ____________________ per pay period, with a final





deduction of $ ___________________ , until the total amount is repaid.





In accordance with the regulations of the Wage Pay and Collection Act, three-fourths of my earnings from each pay period, less deductions, shall be exempt from wage assignments.





____________________________________________ (Employee=s signature)







Taken, sworn to, and subscribed before me on this ________ day_____________________________, 2 ___________.

____________________________________________

Notary Public's Signature

My commission expires , 2 .







Accepted by on this, the day of

(Employer's representative)



, 2 .



____________________________________________

(Employer's Representative Signature)



____________________________________________

(Title)



____________________________________________