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Policy
and Procedure Name:
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Living
Maintenance Wage Loss
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Policy
#:
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CP-12-02
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Code/Rule
Reference:
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R.C. 4121.67; O.A.C. 4123-18-21; O.A.C. 4125-1-01
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Effective
Date:
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02/04/2025
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Approved:
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Shawn
Crosby, Chief Operations Officer
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Origin:
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Claims
Policy
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Supersedes:
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Policy
# CP-12-02, effective 03/02/2020
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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
Comparably paying work
Present earnings
Weekly wage received while employed
Successful return to work
Suitable employment
Voluntary limitation of income
IV. POLICY
A. LMWL
Eligibility, Application and Notification
B. Calculation and
Payment of LMWL
C. Subsequent
Periods of LMWL
D. Good Faith Job
Search and Job Changes
E. Stopping
Payment of LMWL
V. PROCEDURE
A. General Claim
Note and Documentation Requirements
B. LMWL
Eligibility, Application, and Notification
C. Calculation and
Payment of LMWL
D. Voluntary
Limitation of Income
E. Good Faith Job
Search and Job Changes
F. Subsequent
Periods of LMWL
G. LMWL Case
Closure
The
purpose of this policy is to ensure that BWC properly pays living maintenance
wage loss (LMWL) to eligible injured workers (IW).
This
policy applies to BWC Claims Services staff.
Comparably paying
work: Suitable
employment in which the IW’s weekly rate of pay is equal to, or greater than,
the IW’s average weekly wage (AWW).
Present earnings: An IW’s actual weekly
gross earnings, which are generated by gainful employment; or if self-employed,
the IW’s gross income minus business-related expenses. It is a rebuttable
presumption that:
- Earnings
from paid leave (e.g., vacation, sick, etc.) provided by the employer will
be included in present earnings.
- IWs
engaged in self-employment have a gross income of at least 50% of the
statewide average weekly wage (SAWW).
Weekly wage
received while employed: The IW’s present earnings
(actual weekly earnings which are generated by gainful employment).
Successful
return to work: When the IW has obtained employment no
later than 60 days from the date of closure of the IW’s approved comprehensive vocational
rehabilitation plan, or has retained employment following the closure of the
IW’s job retention plan, and the employment is:
·
Within
the physical and psychiatric limitations caused by the impairments resulting
from the allowed conditions in the claim for which the IW completed the
vocational rehabilitation plan; and
·
Reasonable
in comparison with the return-to-work goals of the comprehensive vocational
rehabilitation plan or job retention plan completed by the IW.
Suitable
employment: Work which is
within the IW’s restrictions, and which may be performed by the IW subject to
all physical, psychiatric, mental, and vocational limitations to which the IW
was subject on the date of the injury, or on the date of disability in
occupational disease claims.
Voluntary
limitation of income: When an IW limits their income
by choosing to work fewer hours or at wages below reasonable expectations for
personal reasons, as opposed to reasons related to the allowed conditions in
the claim.
A. LMWL
Eligibility, Application, and Notification
1. Eligibility: BWC
will provide LMWL compensation to IWs who meet all the following criteria:
a. Experience a
wage loss while employed, due to physical or psychiatric limitations caused by
the impairments resulting from the allowed conditions of the claim;
b. Have a date of
injury on or after Aug. 22, 1986;
c. Complete an
approved comprehensive vocational rehabilitation plan or job retention plan;
and
d. Successfully
return to work, as defined in Section III, Definitions.
2. Application: It
is BWC’s policy to require the IW requesting LMWL compensation to submit to
BWC:
a. A completed Application
for Living Maintenance Wage Loss (RH-18) or equivalent; and
b. Medical
documentation of the IW’s physical or psychiatric limitations resulting from
the allowed conditions of the claim.
3. Notification: Upon
receipt of an RH-18 or equivalent, it is BWC’s policy to issue an order addressing
the IW’s eligibility or non-eligibility for LMWL.
B. Calculation and
Payment of LMWL
1. Calculation of
LMWL
a. It is BWC’s
policy to calculate the amount of LMWL at 66 2/3% of the difference between:
i.
The
greater of the IW’s full weekly wage (FWW) or AWW for the claim in which the IW
participated in the vocational rehabilitation plan; and
ii. The weekly wage
(present earnings) the IW is receiving while employed.
b. If the IW
voluntarily limits their income by restricting the number of hours worked, or
by working at a wage below reasonable expectation when more appropriate jobs
are reasonably available, it is BWC’s policy to calculate the IW’s LMWL at 66 2/3%
of the difference between:
i.
The
greater of the IW’s FWW or AWW for the claim in which the IW participated in
the vocational rehabilitation plan; and
ii. The income the
IW would have earned if they had not voluntarily limited their income.
2. Payment of LMWL
a. BWC will issue
LMWL payments following submission of proof of present earnings for the weeks
the IW is requesting LMWL, and other supporting documentation, as applicable.
i.
Proof
of present earnings includes, but is not limited to:
a) Pay stubs;
b) Payroll
reports; or
c) A Report of
Earnings for Living Maintenance Wage Loss (RH-94A) or equivalent, signed by
the IW.
ii. Proof of
present earnings must be submitted at least every four weeks (unless the IW is
self-employed or otherwise has a substantial variation in income) in the form
of an RH-94A, pay stubs, or payroll reports from the IW’s current employer.
iii. If the IW is
self-employed or otherwise has a substantial variation in income, they may
provide proof of earnings on a quarterly basis. BWC may require a copy of their
federal Estimated Tax for Individuals (1040-ES) quarterly payment
voucher, if applicable.
iv. Present
earnings do not include payment of any kind funded in whole or part by the IW.
b. Payments may
continue for up to a maximum of 200 weeks. The number of weeks an IW may
receive LMWL will be reduced by the number of weeks the IW has received wage
loss (WL).
c. LMWL will not
be approved or paid when the IW is participating in a gradual return-to-work
program, even if no living maintenance (LM) is paid during the gradual return
to work.
d. BWC may pay
LMWL retroactively if the IW did not receive working wage loss (WWL) while
participating in vocational rehabilitation-related:
i.
Transitional
work;
ii. On-the-job
training;
iii. Employer
incentive programs; or
iv. Periods of case-management
follow-up.
e. BWC will pay
LMWL at the amount calculated pursuant to Section IV.B.1 of this policy, except
when the calculated amount exceeds the SAWW. In these cases, LMWL will be paid at
the SAWW.
1. BWC requires
that the IW submit subsequent RH-18s, or equivalent, before the specified end date
of the documented restrictions or every six months, whichever occurs first, as
documented in the order.
2. If the IW’s
physical or psychiatric limitations are:
a. Temporary, the
IW must submit medical documentation (Physician's Report of Work Ability
(MEDCO-14) or equivalent) regarding the ongoing status of the restrictions with
subsequent applications.
b. Permanent, BWC
may request that the IW submit supplemental medical documentation (MEDCO-14,
equivalent, or other medical documentation requested by BWC).
D. Good Faith Job
Search and Job Changes
1. BWC requires
that the IW make a good faith effort to search for more suitable, comparably
paying employment:
a. When BWC
determines that the IW has accepted employment that is below the reasonable
expectations of the return-to-work goals of the vocational rehabilitation plan;
or
b. If the IW can
reasonably be expected to obtain different employment for which earnings are
more comparable to those prior to the injury.
2. BWC requires
the IW to notify BWC prior to changing jobs to allow BWC to determine whether
the job change will result in a voluntary limitation of the IW’s income.
1. LMWL payments will
stop when:
a. Upon receipt of
an RH-18 or equivalent, BWC determines that the IW is not eligible to receive
LMWL;
b. A previous
authorization for LMWL has expired, and no new RH-18 application or equivalent
is received; or
c. 200 weeks of WL
(any combination of WWL, non-working wage loss (NWWL), or LMWL) has been paid
to the IW.
2. BWC will communicate
in writing the requirements and status of the IW’s LMWL to the IW.
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.
B. LMWL
Eligibility, Application, and Notification
1. The disability management
coordinator (DMC) will provide information about LMWL to the IW when the IW is
participating in a comprehensive vocational rehabilitation plan or job
retention plan, and
a. The IW returns
to work or remains at work in a modified job, and it appears they will be
making less money than they made at the job of injury as a consequence of their
physical or psychiatric limitations caused by the impairments resulting from
the allowed conditions of the claim; or
b. The
comprehensive vocational rehabilitation plan is subsequently “Closed Plan
Complete - No RTW.”
2. When BWC
receives an RH-18 or equivalent application for LMWL, the DMC will:
a. Create a LMWL
case in the claims management system;
b. Determine if
the IW meets the eligibility and documentation requirements outlined in Section
IV.A.1 and 2 of this policy;
c. Issue an order;
i.
All
orders must address the IW’s eligibility or non-eligibility for LMWL in
response to the RH-18.
ii. If the IW has
been found eligible for LMWL, the order must also include:
a) The dates
during which LMWL is authorized;
b) Any
expectations for job search;
c) Ongoing
documentation requirements;
d) Notice of the
limited duration of LMWL; and
e) Any finding
that the IW has voluntarily limited their income and the resulting calculation
of LMWL, if applicable.
d. Communicate the
approval, if applicable, to the claims service specialist (CSS) assigned to the
claim. The CSS will then be responsible for the payment of LMWL following the
expiration of the appeal period, unless waived by all parties to the claim.
1. Upon
notification of the approval of a period of LMWL and submission of proof of present
earnings, the CSS assigned to the claim will:
a. Enter the IW’s
present weekly earnings into the claims management system to calculate the
amount of the LMWL award, which will be calculated in the manner outlined in Section IV.B.1 of this policy;
b. Pay the
authorized period of LMWL as outlined in Section IV.B.2 of this policy if the
IW submits the required documentation verifying continuing eligibility; and
c. Reduce the
number of weeks the IW receives LMWL by the number of weeks they received wage
loss, as detailed in the Wage Loss
Compensation
policy.
2. Claims Services
staff may refer to the job aids on COR for assistance in determining how many
weeks the IW remains eligible for LMWL.
3. The CSS will pay
LMWL on the same schedule the IW is submitting proof of earnings (e.g., if the
IW submits proof of earnings quarterly, LMWL will be paid quarterly).
4. The DMC may approve,
and the CSS pay LMWL retroactively if the IW did not receive WWL while
participating in vocational rehabilitation-related:
a. Transitional
work;
b. On-the-job
training;
c. Employer
incentive; or
d. Case management
follow-up.
5. When it is
unclear to the CSS whether payment of LMWL to the IW should continue, the CSS must
seek assistance in making this determination from the DMC.
1. If, upon
examining the IW’s proof of earnings, the CSS believes that the IW may be
voluntarily limiting their income, the CSS must refer the claim to the DMC to
make this determination.
2. Upon receipt of
a referral from the CSS concerning voluntary limitation of an IW’s income:
a. The DMC will
determine whether the IW is voluntarily limiting their income using:
i.
Claim
notes;
ii. Wage
information;
iii. Direct discussions
with the IW; and
iv. Any other
relevant information.
b. Factors the DMC
must consider when determining whether a voluntary limitation of income has
occurred include but are not limited to, whether the IW:
i.
Is
employed at a level below the reasonable expectations of the return-to-work
goals of the vocational rehabilitation plan;
ii. Has failed to
accept a good faith offer of suitable employment;
iii. Is working
fewer hours than:
a) The IW worked
at their former employment;
b) The physician has
released the IW to work; or
c) The IW could be
working at their current employment.
iv. Has quit any
suitable employment; and
v. Has made a good
faith job search consistent with Section V.F.1 and 2 of this procedure.
3. If the DMC
determines the IW voluntarily limited their income, and the IW:
a. Has been given
notice via order that their LMWL may be prorated based on this voluntary
limitation:
i.
The
DMC will inform the CSS; and
ii. The CSS will recalculate
the LMWL award amount according to Section IV.B.1.b of this policy.
b. Has not been
given notice via order that their LMWL may be prorated based on this voluntary
limitation:
i.
The
DMC will staff with their supervisor, who will review the claim and seek input
from BWC Legal if needed; and
ii. The DMC will
then inform the CSS of the result of the staffing and any next steps that the
CSS must take.
E. Good Faith Job
Search and Job Changes
1. The DMC may
require the IW to make a good faith effort to search for more suitable,
comparably paying employment as outlined in Section IV.D.1 of this policy.
2. To determine if
a good faith job search will be required, the DMC will consider:
a. The goals of
the vocational rehabilitation plan;
b. The labor
market;
c. The skills and
work history of the IW; and
d. Any other
circumstances and factors relevant to the IW’s ability to find and/or retain a
suitable, comparably paying position.
3. When the DMC
determines that a good faith job search is required in the middle of an
authorization period, the DMC will communicate this requirement to the IW.
4. When an IW
wishes to change jobs after the initial receipt of LMWL, the DMC will review:
a. The details of
the prospective job to ensure the IW is not voluntarily limiting their income;
b. Whether the job
constitutes suitable employment; and
c. Whether the job
is comparably paying work.
1. When it appears
that LMWL will be ongoing past the current authorized period, the DMC will send
a letter to the IW:
a. Providing
notice to the IW that LMWL authorization will end on the defined date of the current
order; and
b. Requesting that
the IW submit another RH-18 and additional required documentation.
c. The letter must
be sent:
i.
42
days prior to the end of an authorized period of LMWL; and
ii. Again at 21
days, if the requested evidence has not been received.
2. Prior to
authorizing any subsequent period of LMWL, the DMC will:
a. Check the
number of remaining weeks of eligibility to receive LMWL to ensure that the IW
has not yet reached the maximum number of weeks allowed; and
b. Ensure that the
IW has submitted:
i.
An
RH-18 or equivalent. The application must be submitted:
a) Prior to the
end date of the restrictions provided by the IW’s physician; or
b) Every six
months, whichever occurs first.
ii. Proof of
earnings; and
iii. If the IW’s
physical or psychiatric limitations are:
a) Temporary, the
IW must submit medical documentation (MEDCO-14 or equivalent) regarding the
ongoing status of the restrictions.
b) Permanent, the IW
must submit medical documentation (MEDCO-14 or equivalent) upon BWC’s request.
3. If the IW has
submitted an RH-18 for a subsequent period of LMWL, the DMC will determine the
IW’s eligibility and issue an order, following the steps detailed in Section V.B.2.b-d
of this procedure.
G. LMWL Case
Closure
1. It is the
responsibility of the DMC to close the LMWL case in the claims management
system.
2. The DMC may
close the LMWL case in the claims management system when:
a. The DMC has
issued an order finding the IW not eligible to receive LMWL, as outlined above. The DMC must ensure that the
effective date of the closure in the claims management system is the same as
the date the order was issued;
b. Authorization
for LMWL has expired, and no RH-18 or equivalent is received;
i.
The
DMC is not required to send the IW a letter regarding the expiration of
benefits if:
a) The DMC
provided appropriate written notice to the IW, as outlined in Section V.E.1 of
this procedure; or
b) BWC has been
notified of a change in the IW’s circumstances (e.g., the IW is currently
unemployed or has retired).
ii. The DMC will ensure
that the closure's effective date in the claims management system is the day
after authorization expires.
iii. If the IW
continues to submit proof of present earnings for LMWL following the expiration
of an authorization period and the DMC sent notice to the IW as outlined in Section
V.E.1 of this procedure, the DMC may either choose to:
a) Close the case
in the claims management system upon expiration of the authorization, ensuring
that the effective date of the closure is the day after the expiration date of
the authorization; or
b) Keep the case
open for several weeks to allow time for the IW to submit the requested documentation,
ensuring that the case is closed if the requested documentation is not received.
c. 200 weeks of WL
(any combination of WWL, NWWL, or LMWL) has been paid to the IW.
i.
The
CSS will send the IW a letter regarding the expiration of LMWL benefits; and
ii. The DMC will ensure
that the closure’s effective date in the claims management system is the same
as the date on the abovementioned notice.