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Policy and Procedure Name:
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Incarceration
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Policy #:
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CP-09-06
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Code/Rule Reference:
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R.C.
4123.54(J)
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Industrial Commission (IC) Resolution/Memo
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None
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Effective Date:
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09/21/2020
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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-09-06 and Procedure # CP-09-06PR.1, effective
09/29/2017
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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
Conviction
Incarceration
Time Served
IV. POLICY
A. Compensation
and Benefits
B. Applicable
Dates
V. PROCEDURE
A. General
Claim Note and Documentation Requirements
B. Investigating
Allegations of Incarceration/Conviction
C. Reviewing
the Results of the Investigation
D. Determining
Impact to Compensation and Benefits
E. Setting
Wages
The purpose of this policy is to ensure that BWC properly
terminates the payment of compensation and benefits when the injured worker
(IW) or a dependent is incarcerated, and properly reinstates the payment of
compensation, when appropriate, after the IW or dependent is released from
incarceration.
This policy applies to all Claims Services staff and Special
Investigations Unit (SIU) staff.
Conviction:
The act of finding a person guilty of a crime in a court of law.
Incarceration:
Confinement in a penal institution, including municipal, county, state, and
federal jail, or prison. Incarceration does not include any time the individual
is not actually confined, such as a period while the individual is released on
bond or bail pending a trial date, or on appeal.
Time Served:
Period of confinement prior to a conviction that is applied by the court to the
sentence to reduce the period of confinement after conviction.
1. It
is the policy of BWC to determine whether compensation and benefits are payable
in a claim when an IW or dependent is incarcerated.
2. For
all dates of injury (DOI), the employer of record (EOR) may discontinue payment
of salary continuation during the period the IW is incarcerated in any county,
state, or federal institution in this or any other state, due to a conviction
for violation of a state or federal law. The EOR may resume payment of salary
continuation upon the IW’s release if they remain an employee.
3. If
the IW or dependent was in a repayment plan for a lump sum advancement (LSA)
prior to termination of compensation due to incarceration, the repayment period
will resume when BWC reinstates payment of compensation.
1. In
claims with a DOI prior to 8/22/1986, it is the policy of BWC to consult with a
BWC attorney about payment of any type of compensation and benefits to an IW
when the IW is incarcerated.
2. In
claims with a DOI on or after 8/22/1986 through 9/28/2017, it is the policy of
BWC to terminate compensation and benefits to an IW, or in the case of
permanent total disability (PTD), refer to the Ohio Industrial Commission (IC)
for termination, when:
a. The
IW is incarcerated in any state or federal correctional institution, or in any
county jail in lieu of incarceration in a state or federal correctional
institution, whether in this state or any other state; and
b. The
incarceration is due to a conviction of a violation of a state or federal
criminal law.
3. In
claims with a DOI on or after 9/29/2017, it is the policy of BWC to terminate
compensation and benefits to an IW or dependence, or in the case of PTD, refer
to the IC for termination, when:
a. The
IW or dependent are incarcerated in any state or federal correctional
institution, or in any county jail in lieu of incarceration in a state or
federal correctional institution, whether in this state or any other state; and
b. The
incarceration is due to a conviction of a violation of a state or federal
criminal law.
1. BWC
staff will refer to the Standard
Claim File Documentation and Altered Documents policy and procedure for
claim note and documentation requirements; and
2. Must
follow any other specific instructions for claim notes and documentation
included in this procedure.
1. When
claims services staff receives information alleging that an IW or a dependent
is incarcerated, they must attempt to secure the following information:
a. Proof
of conviction and sentence (typically a judgment and sentencing entry from the convicting
court, including the convicted offense and length of sentence);
b. Proof
and dates of incarceration;
c. Proof
and dates of incarceration credited as time served, if applicable;
d. Incarceration
location(s); and
e. Current
institutional mailing protocol and address (e.g., the penal institution may
require the mailing address to include the inmate number).
2. If
claims services staff is unable to secure the information outlined above, they must
refer the allegation to their local BWC Special Investigations Unit (SIU).
3. SIU will
then investigate the allegation, and:
a. Open
a case if the investigation results show the appearance of an overpayment
and/or fraud; and
b. Declare
an overpayment, if applicable.
1. If
the investigation results show that the IW or dependent was incarcerated and
convicted, and the conviction was a violation of state or federal criminal law,
claims services staff must determine if compensation and medical benefits are
payable or not payable.
2. If
the investigation results are unclear, or claims services staff is unsure of
the decision based on the information obtained, they must review the facts with
BWC Legal.
1. Determining
Eligibility for Payment of Compensation and Medical Benefits
a. Once
the investigation is complete, claims services staff must determine next steps
based on the following criteria:
i.
For DOI prior to 8/22/1986, when the IW is incarcerated due to a
conviction, claims services staff must staff payment of any type of
compensation with BWC Legal.
ii. For DOI
on or after 8/22/1986 until 9/28/2017, when the IW is incarcerated in any state
or federal correctional institution, or in any county jail in lieu of
incarceration in a state of federal correctional institution, due to conviction
for a violation of a state or federal criminal law, claims services staff must
terminate all compensation and benefits, except for PTD, which they must refer
to the IC for termination.
iii. For DOI on or
after 9/29/2017, when the IW or dependent is incarcerated in any state or
federal correctional institution, or in any county jail in lieu of
incarceration in a state of federal correctional institution, due to conviction
for a violation of a state or federal criminal law, claims services staff must
terminate all compensation and benefits, except for PTD which they must refer to
the IC for termination.
b. If
compensation and medical benefits are not payable based on the criteria listed
above, claims services staff must follow the steps immediately below.
2. Declaring
Compensation and Benefits Not Payable
a. When
claims services staff has determined that compensation and benefits are not
payable, they must take the following steps based on the compensation type:
i.
Temporary Total Disability (TT)
a) Claims
services staff must determine the ineligibility period of TT and make the
appropriate adjustments in the claims management system.
b) Claims
services staff must not enter the information into the claims management system
until the IW or dependent is convicted.
c) Claims
services staff must issue an order terminating TT, including the date of
termination and the evidence relied upon to reach the decision.
ii. PTD
a) Claims
services staff must send a Notice of Referral (NOR) to the IC to request
termination of PTD benefits.
b) Claims
services staff must notify SIU when an IW is on work release and is receiving
non-statutory PTD.
iii. Other Types of Compensation
(including death benefits)
a) Claims
services staff must determine the ineligibility period of compensation and make
the appropriate adjustments in the claims management system.
b) Claims
services staff must not enter the information into the claims management system
until the IW or dependent is convicted.
c) To
declare compensation not payable, claims services staff must issue a BWC Subsequent
Order.
d) If the IW
was participating in a formal vocational rehabilitation plan at the time of
incarceration/conviction, the Disability Management Coordinator (DMC) must
request closure of the plan and send the “Living Maintenance Termination as a
Result of Plan Closure” letter.
b. For
all types of compensation, claims services staff must update the claim status
and ICD codes to “hearing” to prevent payment of compensation and medical
benefits. Claims services staff must document in notes the status of each ICD
code prior to changing their status.
3. Overpayments
a. Claims
services staff must declare an overpayment for compensation paid to an IW or
dependent while incarcerated due to a criminal conviction or during a period of
incarceration prior to conviction that was counted as time served.
b. Claims
services staff must take the steps necessary pursuant to the Overpayment
of Compensation procedure.
4. Reinstating
Compensation after Release from Incarceration
a. General
information
i.
If an IW or a dependent requests compensation and/or benefits after the
compensation or benefits were found not payable due to incarceration and
conviction, claims services staff must secure verification of the following:
a) Release
from incarceration; and
b) Date the
release occurred.
ii. If
claims services staff is unable to secure this information, claims services
staff must refer the allegation to SIU. SIU will investigate and send the
results to claims services staff.
iii. Claims services
staff must request the IW or dependent provide an updated address when they are
released so that orders and correspondence are sent to the correct address.
iv. Claims
services staff must not reinstate compensation over a period that the IW or
dependent was ineligible to receive payment due to the incarceration.
v. If
an IW or dependent was previously granted an LSA and BWC has not recouped the
entire repayment, claims services staff must:
a) Determine
the period compensation was not payable; and
b) Extend the
end date of the rate reduction for the period the compensation was not payable
due to the incarceration.
b. Percentage
of Permanent Partial Disability (%PP), Scheduled Loss (SL), and Facial
Disfigurement
i.
When an IW is released from incarceration, claims services staff may
release payment for any outstanding balance from an award of %PP, SL, or facial
disfigurement.
ii. The
IW remains eligible for the balance of the award.
iii. Claims services
staff must make payment, as required by the respective policy and procedure.
c. TT,
Wage Loss, Living Maintenance, Living Maintenance Wage Loss, Death Benefits,
Change of Occupation and Temporary Partial:
i.
Claims services staff must process requests for new periods of
compensation consistent with the appropriate policy and procedure.
ii. Claims
services staff must ensure that all eligibility and other criteria for new
periods of compensation are met.
iii. Claims services
staff must staff any question related to eligibility and/or appropriate start
dates for a new period of compensation with BWC Legal.
d. PTD:
Claims services staff must refer a request for reinstatement of PTD benefits to
the IC via NOR.
1. If
the IW was incarcerated at any time during the 52 weeks prior to the DOI,
claims services staff must:
a. Determine
the specific dates of incarceration; and
b. Staff
the claim with BWC Legal.
2. BWC
Legal will determine whether periods of unemployment that were the result of
the IW’s incarceration will be included or excluded from the Average Weekly
Wage (AWW) calculation.
3. Claims
services staff may refer to the Wages
policy and procedure for more information.