In West Virginia, the legally-stated purpose of the workers’ compensation program is to assist workers to return to gainful employment after a compensable injury.  Even though a worker might not be able to return to identical employment, the attainment of suitable, gainful employment in a different occupation is desired.  Under West Virginia workers’ compensation statutes and regulations, it is the shared responsibility of the insurer, the injured worker, and the employer, to return the injured worker to suitable employment.  It is the responsibility of the injured worker to participate in an approved rehabilitation program, if appropriate, after a worker has suffered a compensable injury.  The participation in such a program entitles the worker to temporary total disability benefits while the employee is participating in the program or temporary partial rehabilitation benefits if the employee is working part-time.  Failure of the employee to participate in an approved program may result in the denial of the requested services and the termination of temporary total disability benefits. 

Returning the injured worker to his pre-injury job should be the goal of all employers.  Early return to work can decrease the cost of indemnity and medical expenses paid in a worker’s compensation claim, and early return to work reduces other costs to an employer, such as overtime costs paid to those who may be filling in for the injured worker.  Additionally, injured workers who are able to return to work earlier are less likely to retain legal counsel and less likely to drive up claim costs. 

Under the workers’ compensation regulations, it is the duty of the employer to make all reasonable efforts to assist the injured worker in participating in a rehabilitation program.  These efforts include provision of re-employment opportunities upon a release to work if the position is available and assistance in the use of transitional, part-time, modified, and alternate employment.  The regulations also place a duty of cooperation upon the employer with the injured worker’s rehabilitation providers.  The regulations recommend an open dialogue between the health care providers, the rehabilitation providers, and the employer in an effort to create a better understanding of the injured worker’s job duties.  An injured worker must be found to be at maximum medical improvement before he or she can return to work.  Additionally, medical authorization must be given by a treating physician showing that the injured worker is able to return to light duty or full duty, and an assessment must be made as to whether the employee can safely perform essential functions of the pre-injury position.

West Virginia workers’ compensation law specifically provides that no employer shall discriminate in any manner against any of his present or former employees because of that employee’s receipt, or attempt to receive, worker’s compensation benefits under the workers’ compensation program.  An employer cannot terminate an injured employee while that employee is receiving or eligible to receive temporary total disability benefits, unless the injured employee has committed a wholly separate dischargeable offense. 

It is also considered a discriminatory practice if the employer fails to reinstate an employee who has sustained a compensable injury to the employee’s former position of employment upon demand for such reinstatement.  Provided, however, that the position is available and the employee is not disabled from performing the duties of such position.  If that former position is not available, the employer is required to reinstate the employee to another available comparable position, which the employee is capable of performing.  A comparable position is defined as a position which is comparable as to wages, working conditions, and, to the extent reasonably practical, duties to the position held at the time of injury.  A written statement from a duly licensed physician shall be prima facie evidence that the worker is able to perform such duties.  In the event that neither the former position nor a comparable position is available, the employee shall have a right to preferential recall to any job which the injured employee is capable of performing which becomes open after the injured employee notifies the employer that he or she desires reinstatement.  This preferential recall shall be in effect for one (1) year from the date the injured employee notifies the employer that he or she desires reinstatement.

Returning an injured worker to work as soon as practicably possible works to the employer’s benefit, as it helps to defray worker’s compensation costs and other employment costs related to the injured employee’s position.  Importantly, if the employer fails to properly assist in returning the injured employee to work, the employer may find itself the subject of a worker’s compensation discrimination lawsuit. 


Alyssa Sloan focuses her practice in the defense of litigating claims involving workplace injuries and illnesses and related employment matters. She has represented employers in more than one thousand (1,000) protests before the Workers' Compensation Office of Judges and has extensive experience in the appellate practice of worker's compensation claims before both the West Virginia Workers' Compensation Board of Review and the West Virginia Supreme Court of Appeals.
» See more articles by Alyssa A. Sloan
» Read the full biography of Alyssa A. Sloan at Steptoe & Johnson


  1. Dennis Sanchez

    It was interesting when you mentioned that returning an injured employee back to work as quickly as possible should be every employer’s goal. I think in general, if someone is injured they should slowly work themselves back instead of quickly so that they don’t cause further harm. If I got injured badly at work, I would want to hire a lawyer to help me.

  2. Brendan Shelton

    I’m glad you talked about how West Virginia law says that a company cannot discriminate against employees based on workers comp. My son is thinking about filing for workers comp soon because of an injury he had at work but he doesn’t want the company to treat him differently. We will certainly keep this article in mind as we make a plan to get him healthy and back to work.

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