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Policy
and Procedure Name:
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Due
Process
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Policy
#:
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CP-04-06
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Code/Rule
Reference:
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The
Fifth Amendment to the U.S. Constitution; the Ohio Constitution, Article I,
Section 16.
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Effective
Date:
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09/24/21
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Approved:
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Ann
M. Shannon, Chief of Claims
Policy and Support
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Origin:
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Claims
Policy
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Supersedes:
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Policy
#CP-04-06, effective 08/08/2016
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History:
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Previous
versions of this policy are available upon request
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Table
of Contents
I.
POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
Due Process
Notice
Opportunity to Be Heard
Order
Parties to the Claim
IV. POLICY
A. General Due Process Information:
Advance Notice
B. Newly-Filed Applications,
Requests, and Recommendations
C. Opportunity to Respond
D. BWC Decision
The
purpose of this policy is to ensure BWC staff are aware of the legal principle
and expectations of due process in workers’ compensation claims.
This
policy applies to BWC staff and managed care organization (MCO) staff.
Due Process: The legal
principle that government may not deprive an individual of life, liberty or
protected property rights without providing:
·
Notice;
and
·
An
opportunity to be heard.
Notice: A legal
concept describing the requirement that government makes a party aware of a
legal process affecting their rights, obligations or duties.
Opportunity to
Be Heard: A legal concept
describing the requirement that government affords a party the chance to
present the party’s views or objections.
Order: The written
decision made by BWC or the Ohio Industrial Commission (IC) or a court
concerning the matter or issue that is being adjudicated.
Parties to the
Claim: For purposes
of this policy, the injured worker and employer. BWC is also a party to the
claim if the claim is appealed to the Industrial Commission.
1. It is the
policy of BWC to ensure that a party is afforded appropriate advance notice when
BWC (or an MCO, on behalf of BWC) is taking action in a claim that affects the
rights, obligations or duties of the party. Advance notice gives parties an
opportunity to:
a. Submit evidence
to be considered when BWC is acting on a request in a claim; and
b. State their
position on the request.
2. The type and
extent of advance notice afforded to a party depends on the impact to the
party’s protected rights and encompasses many actions in the life of a claim
including:
a. Calling or
sending a letter to the parties informing them of the filing of an application
for action in a claim;
b. Creating a Notice
of Referral (NOR) to the Industrial Commission (IC) when disputes arise;
c. Advising the
parties of the opportunity to provide additional information or evidence to be
considered when BWC is taking action in a claim; and
d. Issuing an
order to the parties, advising the parties of the right to appeal.
3. The type of advance
notice BWC provides varies depending on the issue being addressed. These
specifics are addressed in the policies and procedures for each individual
issue or subject matter. The steps detailed in these procedures may not be
expressly identified as “due process” but are provided to achieve the “notice”
and “opportunity to be heard” requirements.
1. It is the
policy of BWC to review newly filed applications, requests, or recommendations
upon receipt to identify and request missing information or relevant evidence.
2. BWC shall provide
notification to the non-filing party or their representative.
a. If the employer of
record is out of business or no longer doing business in Ohio, or the employer
is in a final cancelled status, BWC is not required to and will generally
not provide notification to the non-filing party or their representative.
b. However, the employer may
make a request for themselves or their authorized representative to receive
continued notice.
3. BWC shall generally
attempt to provide notification by phone, unless otherwise directed in a
subject-specific policy and procedure. Calling allows the opportunity to:
a. Ask follow-up
questions;
b. Obtain
clarification of the issue: and,
c. Reduce delays
in waiting for a response by mail.
4. Fax and email notification
are acceptable for parties that indicate a preference for that type of contact.
5. BWC shall send
correspondence when:
a. Unable to reach
the party by phone or leave a message; or
b. Fax or email
contact is not an available option.
1. It is the
policy of BWC to allow sufficient time for the parties to respond to BWC’s
notification. The response time is determined by BWC’s method of contact.
2. Response Times
a. BWC shall
allow:
i.
Three
business days to respond if the notification is provided by phone, fax, or
email; or
ii. Seven calendar
days, plus an additional four days per the Mailbox
Rule policy, to respond if the notification letter is sent by mail.
b. If the last day
for response to a notice falls on a weekend, a legal holiday, a day in which
BWC is closed, or a day in which BWC closes before its usual closing time, the
last day for response shall be the next business day.
1. Following the
opportunity for the parties to the claim to respond, BWC shall move forward,
taking one of the following actions:
a. Issuing a BWC
order;
b. Initiating a
NOR; or
c. Sending a
letter.
2. Orders
a. For all initial
and subsequent determinations in claims in which BWC has jurisdiction, BWC
shall issue an order and copy all parties to the claim.
b. All orders
shall contain language informing all parties to the claim of their right to
appeal.
c. See the Orders,
Waivers, Appeals and Hearings policy and procedure for additional
information.
3. NORs
a. BWC shall initiate
a NOR to the IC and copy all parties to the claim when:
i.
An
issue is disputed by a party to the claim, including BWC; and
ii. An issue is not
within the jurisdiction of BWC.
b. See the Notice
of Referral to the Industrial Commission policy and procedure for
specific directions for completing a NOR.
4. Letters: In
cases where a letter is the appropriate action, it will be addressed in the
subject-specific policy and procedure.