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.