OhioBWC - Basics: (Policy library) - File

Family Support and Attorney Fees

Policy and Procedure Name:	Family Support Orders and Attorney Fees Paid Pursuant to Deductions of Child Support from Lump Sum Payments
Policy #:	CP-06-03
Code/Rule Reference:	RC 4123.53; O.A.C. 4123-3-09
Effective Date:	05/24/2021
Approved:	Ann M. Shannon, Chief of Claims Policy and Support
Origin:	Claims Policy
Supersedes:	Policy # CP-06-03, effective 11/16/2018 and Procedure # CP-06-03.PR1
History:	Rev. 05/06/2019, 11/16/2018, 11/14/2016; New 12/01/2014

Family Support and Attorney Fees Table of Contents

I. POLICY PURPOSE

II. APPLICABILITY

III. DEFINITIONS

Child Support or Family Support Enforcement Agency

Family Support Orders

A. General Policy Statement

B. Exemptions

C. Lump Sum Awards

D. Self-Insured (SI) Claims

E. Weekly Deduction Orders

F. Maximum Deduction Rates for weekly deduction orders

G. Ending BWC’s Obligation to Deduct Family Support

H. Overpayments

V. PROCEDURE

A. Standard Claim File Documentation

B. Receipt of a Family Support Deduction Order

C. Processing Deduction Orders

D. Special Considerations in Processing Child Support Orders

E. Terminating Family Support

F. Attorney Fees or Honoring a C-230

G. Miscellaneous Issues

I. POLICY PURPOSE

The purpose of this policy is to ensure that BWC appropriately honors family support orders (child support and spousal support) and processes requests for attorney fees in accordance with the law.

II. APPLICABILITY

This policy applies to BWC claims services staff.

III. DEFINITIONS

Child Support or Family Support Enforcement Agency: The agency responsible for placing cases into the Support Enforcement Tracking System (SETS), the system operated by the Ohio Department of Job and Family Services (ODJFS), and oversight of those cases; the entity that will assist BWC claims services staff with obtaining necessary documentation to process court orders.

Family Support Orders: Orders from an issuing authority that relate to child support, spousal support or arrearages accumulated for the non-payment of either.

Issuing Authority: The court or agency that publishes an order mandating payment of family support. Common examples of issuing authorities are:

· Administrative Entities – Local agencies that have vested legal authority and the orders are signed by an administrator who has the legal authority to do so (e.g., Administrative Hearing Officer).

· Domestic Relations Court – County court that issues orders generated as a result of a divorce or dissolution, and the orders are either signed by a judge and/or have a court clerk filing stamp.

· Juvenile Court – County court that issues orders as a result of parentage or “unruly child” issues, and the orders are signed by a judge and/or have a court clerk filing stamp.

· Out-of-State – A non-Ohio domestic or juvenile court or legally-sanctioned agency that issues an order that BWC processes directly and without involvement of the Ohio Interstate Central Registry within ODJFS.

Lump Sum Awards: Any type of compensation that results in at least one lump sum payment (i.e., issuance of payment that is equivalent to more than one standard payment of the compensation type), not just lump sum advancements or lump sum settlements.

Support Orders: The written notification of a decision made by an administrative or judicial entity regarding child support or family support that is legally binding and may require BWC to take action in a claim.

Deduction Order: Order that requires BWC to take deductions from compensation payable to an injured worker (IW), and may include directives for child support, “arrearage only,” or spousal support.
Order of Intervention: Order that requests BWC to reimburse an IW’s attorney for legal fees and expenses.
Temporary Restraining Order: For purposes of this policy, an order that requires BWC to stop payment of benefits, generally until an order establishing support is issued.
Termination Order: Order that ends the family support obligation, in whole or in part.

IV. POLICY

A. General Policy Statement

It is the policy of BWC to deduct overpayments and attorney fees from an award

before calculating the amount of money it will send to the Family Support

Enforcement Agency (FSEA).

B. Exemptions

1. It is the policy of BWC to honor deduction orders for child support, spousal support and arrearages related to child support and spousal support, and deduct monies from workers’ compensation benefits to meet the obligations those orders create;

2. Except for benefits paid pursuant to:

a. Section 916 of the Longshore and Harbor Workers Act

b. Disabled Workers Relief Fund (DWRF) benefits

c. Marine Industry Fund

d. Black Lung

e. Accrued compensation award issued pursuant to an injured worker’s (IW) death

f. Violation of a Specific Safety Requirement (VSSR), because it is a penalty and not compensation.

C. Lump Sum Awards

1. It is the policy of BWC to subject lump sum awards of $150.00 or greater to lump sum processing for payment of family support.

2. Prior to deducting an amount for family support, BWC shall first recoup monies for any overpayments and deduct attorney fees, if applicable.

D. Self-Insured (SI) Claims

1. Self-Insured (SI) claims are subject to family support orders.

2. BWC’s claim management system systematically generates the “Notice to FSEA for Self-Insured Claim” letter to the court with the SI employer’s name and address and notice that the SI employer pays the IW directly.

E. Weekly Deduction Orders

It is the policy of BWC to apply weekly deduction orders to the following types of

compensation:

1. Temporary total compensation (TT);

2. Living Maintenance (LM);

3. Wage Loss (WL);

4. Living Maintenance Wage Loss (LMWL);

5. Permanent Total Disability (PTD);

6. Change of Occupation;

7. Death Benefits;

8. All payments of the following types of compensation, except the accrued portion of the payment of:

a. Percent Permanent Partial (%PP);

b. Scheduled Loss (SL) to the IW or claimant; and

c. Temporary Partial (TP).

F. Maximum Deduction Rates for weekly deduction orders

1. It is the policy of BWC to apply weekly deduction orders consistent with federal consumer protection guidelines in the following manner:

a. Up to 50% of disposable income if the claimant is supporting another family (up to 55% if there are arrears greater than 12 weeks);

b. Up to 60% of disposable income if the claimant is not supporting another family (up to 65% if there are arrears greater than 12 weeks)

2. If the FSEA order does not specify a withholding rate, BWC will withhold up to 55% of a claimant’s rate unless:

a. The FSEA order sets a withholding rate different from those enumerated above, BWC will withhold the rate mandated by the order.

b. The claimant has multiple family support orders.

i. If the total of the multiple orders exceeds 55% of the claimant’s rate, each order is prorated and the percentage of each order is applied to the total deduction allowable.

ii. The formula is: Each amount ordered by the court divided by the total amount of all orders (all percentages totaled should be 100%).

iii. Example: IW has weekly withholding rate of $208.86.

Susie is ordered to receive $110.16 (divide by 208.86) =53%

Amy is ordered to receive $61.20 (divide by 208.86) =29%

Sara is ordered to receive $37.50 (divide by 208.86) = 18%

In this case, based on the claimant’s weekly compensation rate of $300.00, the total allowable deduction is $165.

Susie: $165 x 53% = $87.45

Amy: $165 x 29% = $47.85

Sara: $165 x 18% = $29.70

3. Upon receipt of an Amended Deduction Order, it is the policy of BWC to collect the amount stated in the amended order and recalculate the withholding, as needed.

4. If the claimant’s rate of compensation increases and BWC was unable to pay the full amount of a support order because of the 55% limitation, BWC will recalculate prior deduction amounts and pay up to the ordered deduction amount, if a deduction order is still in effect.

G. Ending BWC’s Obligation to Deduct Family Support

1. Termination Order or Arrearage Only letter

a. Termination orders are the responsibility of the claimant to initiate as not all courts will routinely issue one when the obligation to provide support ends.

b. Upon receipt of a termination order, BWC will discontinue sending payments for family support, even if past periods of compensation are awarded for a period that the now-terminated order was active.

c. If BWC issues payment of family support after the court issues a termination order for any reason, BWC will not pursue recovery of an overpayment from the FSEA. Rather, it is the responsibility of the claimant to work with the FSEA to recoup monies if the claimant chooses to pursue it.

d. If BWC receives a termination order after a “Notice to Attorney of Lump Sum Payment” letter is issued, BWC shall hold the lump sum payment for 30 days to allow the attorney to request fees and expenses. See Section V.F.1-3, below.

2. BWC may release funds to the claimant when:

a. FSEA notifies BWC in writing or via an order that there are no arrearages; or

b. FSEA fails to respond to BWC within the prescribed timeframe.

H. Overpayments

1. It is the policy of BWC, when collecting overpayments from the claimant for periods of compensation that the claimant was not entitled to receive, to also recoup from the claimant any payment from that overpaid period of compensation paid directly to FSEA.

a. BWC will collect the payment of family support made during the overpaid period of compensation based on the appropriate percentage for the type of compensation from which the overpayment is recouped.

b. BWC generally will not pursue an overpayment from an FSEA.

2. BWC will deduct overpayments from the actual gross award prior to distributing monies to an authorized representative, FSEA or the claimant.

3. The general order of deductions when there is an overpayment is:

a. Overpayment

b. If the remaining balance of the award after the overpayment deduction is less than $150.00:

i. If there is a C-230, BWC will honor it; or,

ii. The claimant is paid the entire remaining balance.

c. If the remaining balance of the award after the overpayment deduction is equal to or greater than $150.00, the lump sum process applies, as outlined in section IV.H., above.

V. PROCEDURE

A. Standard Claim File Documentation

1. BWC staff shall refer to the Standard Claim File Documentation and Altered Documents policy and procedure for claim note requirements; and

2. Shall follow any other specific instructions for claim notes included in this procedure.

B. Receipt of a Family Support Deduction Order

1. If claims services staff receives an order, claims services staff shall immediately send the order to the BWC Family Support Unit (FSU) (e.g., fax, email with scanned attachment).

2. The FSU, upon receipt of the order either from the claims services staff or directly from the Family Support Enforcement Agency (FSEA), shall:

a. Verify the existence of the claimant and claim number(s) based on the social security number provided on the FSEA order.

i. If the beneficiary or dependent is receiving death benefits, enter a note in the claim and create a user-generated work item for the assigned claims service specialist (CSS) as notice that there is an order for family support that must be manually processed.

ii. Claims services staff shall manually allocate family support benefits to the appropriate agency and shall complete the “FSEA Apportionment Calculator” worksheet.

iii. If the claimant cannot be identified or there is no claim, follow section II.D., below;

b. Write the claim number(s) on the FSEA order;

c. Image the order into the claims management system for all the claimant’s claims;

d. Create the child support record and attach to the customer; and,

e. Note the effective date of the order, which is:

i. The date specified in the order; or,

ii. The date BWC receives the order;

f. Enter the FSEA withholding dollar amount into the claims management system.

3. Upon notice that the FSU has imaged the order into a claim, claims services staff shall verify all the following information in the order regarding the injured worker (IW)/claimant with the information in the claims management system:

a. Social Security Number

b. Name

c. Case Number

d. Amount of Deduction

e. Local FSEA

f. Effective date of the order.

4. If the individual cannot be identified as a customer within the claims management system based on the information the court provides, the FSU shall add a new person customer attaching the child support information as appropriate. The claims management system will automatically generate the “Notice to FSEA No Claim for SSN” letter to FSEA.

5. If claims services staff has questions about the order, or they have received a conflicting order, claims services staff should contact the FSEA to clarify and shall provide documentation of the direction received from FSEA.

C. Processing Deduction Orders

1. After FSU has entered the weekly/monthly rates listed in the order that were calculated by the FSEA into the claims management system, claims services staff shall:

a. Build the appropriate compensation plan as soon as possible following the effective date of the order.

b. Begin withholding family support from the weekly benefit as of the effective date of the withholding order until the expiration of the order.

c. Not withhold family support when an IW is being paid a weekly benefit in arrears until that weekly benefit catches up to the effective date of the withholding order.

d. Workers’ compensation benefits that are recalculated due to an increase in the average weekly wage (AWW) and paid out in a lump sum are not subject to the weekly child support withholding order, unless BWC was unable to pay the full amount of the support order when the compensation was originally paid.

i. Example: Child Support is ordered beginning 12/15/2016 and the next pension period begins 12/11/2016 – withholding date would begin 12/15/2016.

ii. Example: Child Support is ordered beginning 10/15/2016 but the warrant covering that period has already been processed; child support would begin on the first day of the next pension period.

iii. Example: Weekly payments began on 07/15/2016 and on 10/01/2016 wages were recalculated which caused a lump sum payment to be created; if BWC could pay the full amount of the support order when weekly payments began in July, no new money will be allocated to family support even when a withholding order was in place during this period.

2. Weekly Deduction Orders

a. Claims services staff shall process weekly deduction orders for compensation paid on a weekly basis, including:

i. Temporary total compensation (TT);

ii. Living Maintenance (LM);

iii. Wage Loss (WL);

iv. Living Maintenance Wage Loss (LMWL);

v. Permanent Total Disability (PTD);

vi. Change of Occupation;

vii. Death Benefits;

viii. All payments of the following types of compensation, except the accrued portion of the payment of:

a) Percent Permanent Partial (%PP);

b) Scheduled Loss (SL) to the IW or claimant; and

c) Temporary Partial (TP).

b. If the weekly deduction order is terminated by the child support agency, BWC is no longer obligated to withhold the weekly deduction from any compensation regardless of the dates that compensation covers.

c. FSU shall calculate a weekly rate for the deduction ordered to be paid any way other than a weekly rate.

i. Example: Court orders a bi-weekly rate of $100.00. Claims services staff shall divide by 2 to get the weekly rate of $50.00.

ii. Example: Court orders bi-monthly rate of $100.00. Claims services staff shall multiply $100.00 by 24 payments and then divide by 52 to get a weekly rate of $46.15.

iii. Example: Court orders monthly rate of $100.00. Claims services staff shall multiply $100.00 by 12 and then divide by 52 to get a weekly rate of $23.08.

d. Except for in death claims, the claims management system will automatically withhold up to a total of 55% of an IW’s rate for child support obligations.

i. If the FSEA order is for any amount other than 55%, the CSS will need to manually create an FSEA allocation.

ii. The calculation can be completed using the “FSEA Allocation Exceeding 55%” worksheet.

e. The CSS on the centralized Survivor Benefits Team shall manually calculate the amount to be withheld from the claimant’s death benefits and shall allocate appropriately.

f. Multiple Weekly Withholding Orders

i. To manually process the multiple weekly withholding orders, claims services staff shall:

a) Calculate the prorated percentage of each order and apply to the total deduction allowable.

b) Divide each amount that is court-ordered by the total amount of all orders, bringing the total percentage to 100%.

ii. Example:

a) Claimant has weekly family support order rate of $208.86.

b) Susie is ordered to receive $110.16 (divide by 208.86) = 53%

c) Amy is ordered to receive $61.20 (divide by 208.86) = 29%

d) Sara is ordered to receive $37.50 (divide by 208.86) = 18%

e) After figuring the percentages, claims services staff shall multiply 55% by the weekly compensation rate, which is $300.00. Therefore, the total allowable deduction is $165.00.

b) Then, claims services staff shall multiply the total allowable deduction of $165.00 by the percentages to figure the amended deduction amount staff must send to meet the child support obligations. In this example:

Susie: $165 x 53% = $87.45

Amy: $165 x 29% = $47.85

Sara: $165 x 18% = $29.70

b. Amended Deduction Orders or Adjustment of Wages

a. When the court orders an amended deduction, FSU shall input the amended deduction amount into the claims management system.

i. Except for death claims, the system will automatically adjust the deduction amount.

ii. In death claims, the CSS on the Survivor Benefits Team shall manually adjust the deduction amount.

b. When claims services staff adjusts previously paid periods of compensation for which family support has also been paid, except for in death claims, the system will automatically “check” to determine if the obligations of the order(s) were met.

i. If the obligations of the orders were met, the system will automatically continue to deduct.

ii. If the obligations of the orders were not met:

a) And the adjustment results in additional monies to the IW, the system will generate a payment to FSEA.

b) But if no additional monies are payable to the IW/claimant, the system will continue to deduct any outstanding family support obligation from future payments, and claims services staff need not take any further action.

iii. In death claims, the CSS on the Survivor Benefits Team shall determine if additional monies are payable to FSEA and make any additional payment to the FSEA allocating accordingly.

D. Special Considerations in Processing Child Support Orders

1. Working Wage Loss (WWL) or LMWL

a. If the IW/claimant is receiving WWL or LMWL and earning a salary, claims services staff shall contact the IW and ask if the employer is withholding family support.

b. If the employer is withholding family support, claims services staff may advise the IW that s/he may choose to contact the FSEA and obtain a termination order to send to BWC.

2. Lump Sum Awards with Active Family Support Orders

a. Claims services staff shall deduct family support arrearages from lump sum awards equal to or greater than $150.00 for the compensation types listed in V.D.2.b below, and shall deduct the family support after recouping monies for overpayments and attorney fees, if applicable.

b. Staff shall use this process for the following awards/payments:

i. Facial Disfigurement;

ii. Accrued payments, including:

a) Scheduled loss;

b) %PP;

c) TP;

iii. Lump Sum Advancements;

iv. LSS;

v. Increases to the AWW that result in an accrued payment to the IW for awards of %PP, SL, or TP.

c. Claims services staff shall ensure the claims management system deducts overpayments and, when evidenced in accordance with section VI. of this procedure, attorney fees, before paying family support obligations.

d. Claims services staff shall refer to and follow the FSEA Lump Sum Processing workflows, found on COR.

e. If the claimant is represented, claims services staff shall send a “Notice to Attorney of Lump Sum Payment” letter to the IW’s representative when:

i. Wages are set in the claim; and

ii. The lump sum award becomes payable (after all appeal periods expire); or

iii. When the LSS order is mailed.

f. Claims services staff may deduct up to 100% of a lump sum award equal to or greater than $150.00 if the claimant has family support arrearages unless otherwise instructed by FSEA order.

g. Lump sum awards and multiple FSEA awards – claims services staff shall disburse monies after receiving a response from all FSEA involved, or after the 30-day hold period expires, whichever is earlier.

h. Claims services staff shall use the “FSEA Apportionment Calculator” to determine the appropriate apportionment when multiple awards are being processed unless BWC receives a court order mandating specific amounts to cases.

3. Overpayments

a. Claims services staff shall recoup overpayments from the claimant. The overpayment amount includes both the payments issued directly to the claimant and the child support payments issued out of the declared-overpayment compensation that were paid directly to the FSEA.

b. Claims services staff shall recoup the overpayment, which shall include the monies sent to the FSEA from the period of overpaid compensation, at the appropriate percentage for the type of compensation from which the overpayment is being recouped.

c. Claims services staff shall deduct overpayments from the actual gross award prior to distributing monies to an authorized representative, FSEA or the IW.

d. Claims services staff shall deduct from compensation as follows:

i. Overpayment;

ii. Attorney fees, if applicable;

iii. Child Support;

iv. If there are no attorney fees and a valid Authorization to Receive Workers’ Compensation Payment (C-230) is on file, honor the C-230;

v. Any remaining balance is paid to the claimant.

4. Self-Insured Claims

a. The claims management system will automatically generate the “Notice to FSEA for Self-Insured Claim” letter to FSEA if an order for family support is received at BWC.

b. BWC will deduct family support obligations from bankrupt SI claims with a valid court order.

E. Terminating Family Support

1. BWC shall discontinue processing a deduction order when the IW/claimant is no longer receiving compensation.

2. Temporary Restraining Order

a. Claims services staff shall immediately comply with any Temporary Restraining Order (TRO) and stop payment pursuant to the TRO.

b. Claims services staff shall not re-start payment until the same court that issued the TRO issues a subsequent order establishing weekly or lump sum payment.

c. Claims services staff shall direct the IW to address questions regarding the TRO with the issuing court.

3. Termination Order or Modified Order

a. FSU shall:

i. Determine if the court is issuing a termination order that terminates all current obligations, or if it is issuing an order labeled as a termination order that only terminates some, but not all, of the obligations (e.g., a court issues a T.O. ending only the weekly deduction amount but not the arrearages).

ii. Upon receipt of a T.O. terminating only certain family support payments, call the FSEA to determine if the FSEA wants BWC to continue to withhold for other deductions not terminated in the T.O.

iii. Expire the withholding on the claims system upon receipt of the termination order from the FSEA or upon clarification as noted in section V.E.3.a.ii., above.

b. If claims services staff receives a termination order after the “Notice to Attorney of Lump Sum Payment” letter has been issued, claims services staff shall hold the lump sum payment for thirty (30) days.

F. Attorney Fees or Honoring a C-230

1. Attorney Fees (Refer to the FSEA Lump Sum Processing workflows, found on COR)

a. Claims services staff shall notify the claimant’s attorney of a lump sum award equal to or greater than $150.00 if the claimant’s attorney represented the claimant on the award that is resulting in the lump sum payment.

i. Claims services staff shall send the “Notice to Attorney of Lump Sum Payment” letter.

ii. The letter is sent:

a) Once a lump sum award becomes payable, or

b) When the LSS order is mailed.

iii. Concurrently, claims services staff shall notify FSEA that the letter has been sent to the attorney and that after payment to the attorney or after the 30-day waiting period expires, BWC shall issue another letter, “Notice to FSEA Lump Sum Hold,” to the FSEA.

iv. If the FSEA secures a formal court order any time after the second letter was sent, claims services staff shall process the court order as written without waiting for the 30-day hold period to expire, unless:

a) An LSS is pending; or

b) There are multiple FSEAs involved, and we have not received a response from each.

v. If the FSEA or Court does not respond within the 30-day hold period provided for in the “Notice to FSEA Lump Sum Hold” letter (i.e., the second letter sent), claims services staff shall release payment to the IW.

b. If an attorney submits a request for attorney fees within 30 days of the BWC notification to the attorney, claims services staff shall:

i. Ensure that the attorney has provided:

a) A fee agreement signed by the claimant;

b) An affidavit for attorney fees (i.e., Affidavit for Attorney Fees (C-255), or equivalent), signed by the attorney, that includes the specific fee being requested; and,

c) If applicable, an itemized list of expenses related to the compensation that the claimant is receiving and that are permitted in the fee agreement.

ii. Ensure that the request for attorney fees is correct and does not:

a) Include other awards or future awards;

b) List a higher percentage than that allowed for in the fee agreement.

iii. Ensure that the attorney is requesting the correct amount by:

a) Examining the fee agreement and comparing it to the request;

b) Determining, if the attorney requested both a percentage and a specific amount, that those amounts match.

c) Or, calculating the amount that BWC will issue if the attorney only included a percentage in the request.

iv. Notify the attorney of any issues so that the attorney can resolve the issue(s) prior to the expiration of the 30-day period.

v. Reject any request that does not meet the requirements listed in V.F.1.b.i-iii.

c. If the attorney is requesting expenses and claims services staff determine that the expenses are not provided for in the fee agreement, claims services staff shall:

i. Pay any appropriately requested attorney fees and deny only the expenses that are not supported.

ii. Staff with the local BWC attorney if claims services staff has questions about the quality or relatedness of supporting documentation for the expenses.

d. Claims services staff shall:

i. If the attorney has filed a C-255:

a) Pay the attorney within 14 days of receipt of the fee agreement and affidavit requesting payment and issue payment to the attorney in the attorney’s name; and

b) Then pay any family support obligation.

ii. If the attorney has not filed a C-255 but has filed a C-230:

a) Deduct family support from the award;

b) Then honor the C-230 and issue payment in the claimant’s name.

iii. If the attorney has filed a C-255 but has failed to submit documentation within 30 days as required, then claims services staff:

a) Shall not issue payment of attorney fees in the attorney’s name, but issue payment in the claimant’s name;

b) Shall issue notice and payment to the FSEA;

c) Honor a C-230 if one was filed.

2. Honoring a C-230

a. Claims services staff shall determine if the attorney who requested attorney fees is also the attorney listed on the C-230 in the claim.

b. If the attorney is the same on both the C-230 and the request for attorney fees, staff shall not honor the C-230.

c. If the attorney listed on the C-230 is different from the attorney who requested attorney fees, staff shall contact the claimant and the attorney listed on the C-230 and notify them of the discrepancy.

i. If an order has not yet been published and the claimant withdraws the C-230, claims services staff shall no longer be obligated to honor it.

ii. If an order has been published or the claimant does not withdraw the C-230, claims services staff may consult with the local BWC attorney to determine whether it is appropriate to honor the C-230 in addition to the request for attorney fees.

3. If the IW dismisses the attorney during an appeal period, claims services staff shall send the “Notice to the Attorney” letter and allow the attorney an opportunity to request payment.

G. Miscellaneous Issues

1. Contempt of Court - Upon receipt of a Contempt of Court Order, claims services staff shall immediately notify a BWC attorney.

2. Order of Intervention – Upon receipt of an order that requires BWC to issue payment to a claimant attorney for expenses, claims services staff shall comply and immediately issue payment as ordered by the court.