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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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Effective Date:
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09/21/20
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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
09/29/17.
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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 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.
II. APPLICABILITY
This policy applies to all claims services staff and Special
Investigations Unit 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 jails or prisons. 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.
A.
Compensation and Benefits
1.
It is the policy of BWC to determine whether compensation and benefits
are payable in a claim when an injured worker (IW) or dependent is
incarcerated.
2.
For all dates of injury, the employer of record 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 employer of record may resume
payment of salary continuation upon release if the IW remains an employee.
3.
If the IW or dependent was in a repayment plan for a lump sum
advancement prior to termination of compensation due to incarceration, the
repayment period will resume when BWC reinstates payment of compensation.
B.
Applicable Dates
1.
For claims with a date of injury prior to 8/22/86 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.
For claims with a date of injury on or after 8/22/86 through 9/28/17: It
is the policy of BWC to terminate, or in the case of PTD, refer to the
Industrial Commission (IC) for termination, compensation and benefits to an IW,
when the IW is:
a.
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.
For dates of injury on or after 9/29/17: It is the policy of BWC to
terminate, or in the case of PTD, refer to the IC for termination, compensation
and benefits to an IW or a dependent, when the IW or dependent is:
a.
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.
A.
General Claim Note and Documentation Requirements
1.
BWC staff shall refer to the Standard
Claim File Documentation and Altered Documents policy and procedure for
claim note and documentation requirements; and
2.
Shall follow any other specific instructions for claim notes and
documentation included in this procedure.
B.
Investigating Allegations of Incarceration/Conviction
1.
In all claims, when information is received alleging an injured worker
(IW) or a dependent is incarcerated, claims services staff must attempt to
secure the following information in order to determine if compensation and
medical benefits are payable or not payable:
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.
If IW or dependent is credited with time served as part of the
sentence, the proof and dates of incarceration for the time served.
d.
Incarceration location(s) of the IW or dependent; and
e.
Current institutional mailing protocol and address of the IW or
dependent (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 in section V.B.1, claims services staff must refer the allegation to
their local BWC Special Investigations Unit (SIU).
3.
SIU shall 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.
C.
Reviewing the Results of the Investigation
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, then claims services staff must determine if compensation
and 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, claims services staff
must review the facts with a BWC attorney.
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 dates of injury prior to 8/22/86, claims services staff must staff with a
BWC attorney payment of any type of compensation and benefits , when the IW is
incarcerated due to a conviction.
ii.
For dates of injury on or after 8/22/86 until 9/28/17, claims services staff
must terminate all compensation and benefits, except for PTD, which is referred
to the Industrial Commission (IC), 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.
iii.
For dates of injury on or after 9/29/17, claims services staff must terminate
all compensation and benefits, except for PTD which is referred to the
Industrial Commission (IC) for termination, 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.
b.
If compensation and medical benefits are not payable based on the criteria
listed above, claims services staff must follow the steps in section D.(2)
below.
2.
Declaring Compensation and Benefits Not Payable
a.
When claims services staff has determined that compensation and benefits are
not payable, claims services staff must take the following steps based on the
compensation type.
i.
Temporary Total
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 shall not enter the information into the claims
management system until the IW or dependent is convicted.
c)
Claims services staff must issue an ordering terminating TT, including the date
of termination and the evidence relied upon to reach the decision.
ii.
Permanent total disability (PTD)
a)
Claims services staff must request termination of PTD benefits to the IC via a
Notice of Referral (NOR).
b)
Claims services staff must notify the 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 send a
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 to “hearing” to prevent payment of compensation and medical benefits by
changing the International Classification of Diseases (ICD) codes to
“hearing” status. Claims services staff must document in notes the status of
each ICD code prior to changing them to “hearing.”
3.
Overpayments
a.
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
ultimately counted as time-served must be declared overpaid.
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
aforementioned was found not payable due to incarceration and conviction,
claims services staff must secure verification of the following:
a)
Release from incarceration;
b)
Date the release occurred.
ii.
If claims services staff is unable to secure this information, then claims
services staff must refer the allegation to SIU. SIU will conduct an
investigation and forward the results back to claims services staff.
iii.
Claims services staff must request the IW or dependent provide an updated
address when s/he is released so that orders and correspondence may be 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 of time compensation was not payable;
b)
Extend the end date of the rate reduction for the period of time the
compensation was not payable due to the incarceration.
b.
Percent of Permanent Partial, Scheduled Loss and Facial Disfigurement: When an
IW is released from incarceration, claims services staff may release payment
for any outstanding balance from an award of percent of permanent partial,
scheduled loss or facial disfigurement.
i.
The IW remains eligible for the balance of the award.
ii.
Payment must be made 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.
All eligibility and other criteria for new periods of compensation must be met.
iii.
Any question related to eligibility and/or appropriate start dates for a new
period of compensation must be staffed with a BWC attorney.
d.
PTD: Claims services staff must refer a request for reinstatement of PTD
benefits to the IC via a Notice of Referral.
1. Staffing
with a BWC Attorney
a.
If the IW was incarcerated at any time during the 52 weeks prior to the date of
injury, the claims services staff must determine the specific dates of
incarceration and must staff the claim with a BWC attorney.
b.
The BWC attorney will determine whether periods of unemployment that were the
result of the IW being incarcerated will be included or excluded from the
Average Weekly Wage (AWW) calculation.
2.
Other Resources
a.
Claims services staff may refer to the Wages policy and
procedure for further information.
b.
Additional questions may be sent to the Claims Policy email box.