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Policy and Procedure Name:
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Notice of Referral to the Industrial Commission
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Policy #:
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CP-14-01
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Code/Rule Reference:
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R.C. 4121.34;
R.C. 4121.35; R.C. 4123.52; OAC 4121-3-13(B)
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Effective Date:
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01/27/21
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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-14-01, effective 04/17/20
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History:
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Previous versions of this policy are available upon
request.
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Notice of Referral to the Industrial Commission Table of
Contents
I. POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
None
IV. POLICY
A. Initiating a Notice of
Referral (NOR)
B. Examples of Issues To
Be Referred
V. PROCEDURE
A. General Claim Note
Requirements
B. General Procedure
C. Special Circumstances
The purpose of this policy is to ensure that Ohio Bureau of
Workers’ Compensation (BWC) staff refer appropriate matters to the Ohio
Industrial Commission (IC) in an efficient and effective manner.
This policy applies to all BWC claims services staff.
1. It is the
policy of BWC to initiate a NOR to the IC for:
a. All issues
disputed by a party to the claim; and
b. Issues not
within the jurisdiction of BWC.
2. A NOR may
be initiated:
a. By an application
filed by the IW, employer, claimant, or authorized representative; or
b. Upon BWC’s
request.
1. Non-certified
or rejected self-insured employer disputed matters;
2. Disputed
requests from:
a. Injured
worker (IW);
b. Employer;
c. Claimant;
or
d. Respective
authorized representative;
3. Requests
for Permanent Total Disability (PTD);
4. BWC Administrator
requests;
5. Modifying
a previous NOR;
6. Conflicting
evidence related to ongoing compensation entitlement;
7. An issue
returned to the IC for reset after BWC has completed a requested action;
8. Wage
adjustments when the IC initially set the wages; and
9. Any other
issues where the IC has original jurisdiction (e.g., Violations of Specific
Safety Regulation (VSSR).
1. Claims
services 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.
1. Claims
services staff:
a. Shall
create a NOR in the claims management system when referral is appropriate as
noted in IV.A. above.
i. Example
of a NOR initiated by the IW/employer/claimant: BWC receives a Request for
Temporary Total Compensation (C-84) from the IW and there is a conflict,
which requires the issue to be sent to the IC for determination.
ii. Example
of NOR initiated by BWC because the issue is not within BWC’s jurisdiction: Claims
services staff has obtained evidence that the IW has reached maximum medical
improvement, and an administrative referral is made requesting that temporary
total compensation (TT) be terminated.
b. May
include up to three issues in one NOR if the NOR is initiated by either the
IW/employer/claimant or by BWC;
c. Shall
not combine issues from IW/employer/claimant and BWC in the same NOR; and
d. May
generate more than one NOR per day.
2. Claims
services staff shall include the following information in the NOR:
a. A
description of the issue - A clear and detailed explanation of the purpose for
the referral that includes a description of the form, correspondence, or issue
that initiated the referral;
b. BWC’s
recommendation or position on the request;
c. BWC’s
rationale and supporting evidence - All evidence that supports the recommendation
shall be specifically identified;
d. The
opposing party’s position on the request, if known;
e. A request
for interpreter services, if needed. The referral should include the specific
language or type of interpreter needed (i.e., American Sign Language or a
foreign language);
f. Identification
of reference claims that are relevant to the referred issue (if applicable);
and
g. A request
for additional time for the hearing (e.g., BWC requests 30 minutes for the
hearing) (if applicable).
h. When a NOR
is initiated by the IW, employer, or claimant, claims services staff shall also
include:
i. The
date the application was received (not the date the application was signed);
and
ii. The
party that made the application (IW, employer, or claimant).
i. When
a NOR is initiated by BWC, claims services staff shall:
i. Reflect
that it is an administrative referral; and
ii. Include
the appropriate insert that describes the issue being referred.
a) If no
insert adequately describes the issue, claims services staff shall explain the
issue.
b) If
additional information needs to be provided, claims services staff shall enter
the additional information that is needed.
1. In
addition to the general procedure immediately above, the following special circumstances
require additional action:
a. Additional
Allowance;
b. Continuing
Jurisdiction;
c. Change
of Election or an Award for Impairment of Earning Capacity;
d. Modifying
a Previous NOR;
e. Referral
for Reset;
f. Resetting
Full Weekly Wage (FWW) or Average Weekly Wage (AWW) When the IC Has Initially
Set Wages;
g. Scheduled
Loss;
h. Self
Insured (SI) Disputed Matters;
i. TT;
j. Wage
Loss Compensation (WL); and
k. Withdrawal
of a NOR.
2. In such
cases, claims services staff shall follow the issue-specific directions
detailed below.
a. Additional
Allowance - Prior to referral for an additional allowance issue(s), claims
services staff shall obtain evidence (e.g. file review or exam) to support
BWC’s position on the issue.
b. Continuing
Jurisdiction
i. A
BWC attorney may file a Motion (C-86) for continuing jurisdiction based
on one or more of the following:
i) Mistake
of fact;
ii) Mistake
of law;
iii) Clerical error;
iv) New and changed
circumstances; and
v) Fraud.
ii. The
BWC attorney may file the C-86 directly with the IC, or claims services staff
may complete the NOR referring to the BWC attorney’s C-86 once it has been
submitted.
iii. If the BWC
attorney files the C-86 directly with the IC, they shall notify claims services
staff that a C-86 has been filed and ensure that the C-86 is imaged into the
claim. In these circumstances, a NOR is not required.
c. Change
of Election or an Award for Impairment of Earning
Capacity
i. Clearly
indicate the specific name of the physician(s), dates of medical reports,
diagnostic tests, and the specific statements or evidence from the reports
relied on to make the referral, including the medical documentation from the
treating physician that outlines the IW’s inability to return to his or her
former position of employment, if applicable;
ii. Include
the job description of IW’s regular job at the time of injury and the
description of the new occupation, which includes physical requirements;
iii. If the IW
is employed, reference the documentation for wages earned during the period;
and
iv. If the IW is
unemployed, reference the documentation that indicates the specific period of
time they were unemployed.
d. Modifying
a Previous NOR - If a previously sent NOR needs to be modified rather than
withdrawn, claims services staff shall send a new NOR that includes:
i. The
date of the original NOR;
ii. The
issue(s) previously identified; and
iii. An
explanation for the new NOR;
e. Referral
for Reset
i. Claims
services staff shall use a NOR to return a claim to the IC for reset after
claims services staff has completed a requested action.
Example:
The IC remanded a claim back to BWC for an exam to be completed. Once the exam
is completed, the issue is referred back to the IC as a reset.
ii. When
returning a claim to the IC for reset, claims services staff shall indicate the
NOR was initiated by the IW/employer/claimant and provide the information
needed to identify the reason for the reset.
iii. If BWC has
identified a new issue(s), the NOR shall clearly identify that a new issue(s)
is being added to the issue(s) that was originally referred to the IC.
f. Resetting
Full Weekly Wage (FWW) or Average Weekly Wage (AWW) When the IC Has Initially
Set Wages
i. Identify
who is initiating the request;
ii. State
the number of weeks claims services staff recommends should be included or
excluded from the calculation and specific time periods covered;
iii. Include the
basis for calculation by stating the amount earned divided by the number of
weeks included in the calculation; and
iv. Provide a
recommendation on the adjustment of any past compensation paid, when requested
by the filing party in writing.
g. Scheduled
Loss
i. Clearly
indicate the name of the physician(s), date(s) of medical report(s), diagnostic
test(s), and the specific statement(s) or evidence from the report(s) relied on
to make the referral. Claims services staff shall indicate the exact place or
percentage of loss, when applicable;
ii. Identify
recommended start date for payment; and
iii. If
applicable, identify if there is information on a previous or similar award.
h. Self
Insured (SI) Disputed Matters - Claims services staff shall use a NOR to refer self-insured
claims to the IC for hearing within seven days of notice of a dispute.
i. TT
- When preparing a NOR for TT issues, claims services staff shall identify the
specific period and dates requested and, as applicable:
i. State
if TT is due to a non-allowed condition(s);
ii. Identify
any defects or missing information on the C-84 or MEDCO-14 in addition to
attempts to obtain missing information or resolve the defects;
iii. Cite any
medical file review or independent medical exam that does not support temporary
total benefits and the basis for the medical opinion;
iv. Cite information
regarding return to work (RTW), light duty job offer by employer (in writing),
or previous/current findings of maximum medical improvement and receipt of any
unemployment compensation; and
v. Document
any recent rehabilitation activity.
j. Wage
Loss Compensation (WL) – As applicable, claims services staff shall:
i. Document
any reason for objection;
ii. Clearly
describe job search information and results;
iii. Identify
any contact with potential employers and any responses, as described in the Wage
Loss policy and procedure;
iv. Describe
information regarding the IW’s former job or any job offer from the former
employer; and
v. Report
information or involvement in rehabilitation.
k. Withdrawal
of a NOR
i. Claims
services staff may withdraw a NOR in the following circumstances:
a) The party
that filed the original request which prompted the NOR has indicated in writing
the desire to withdraw the request.
Example: The
NOR was prompted by a C-86 filed by the IW asking for an additional
condition(s), but subsequently, the IW asked to withdraw the C-86.
b) BWC can
now take action on the request that prompted the NOR.
Example: BWC
made a referral to the IC regarding payment of temporary total compensation
because there was insufficient information to support approval, but
subsequently, BWC received the necessary documentation.
c) BWC
referral was made in error.
Example: A
referral was made to the IC requesting an adjustment to the IW’s wages, but
claims services staff later recognized that BWC initially set the wages and can
address resetting the wages.
ii. To
withdraw a NOR, claims services staff shall send an e-mail to BWC Legal, who
will submit the request to the IC.
iii. The IC
will do one of the following in response to the request to withdraw:
a) If the
Hearing Administrator agrees to allow claims services staff to withdraw the NOR
and the hearing has not been scheduled, the IC will send an Ex Parte Order to
all parties dismissing the issue.
b) If the
Hearing Administrator agrees to allow claims services staff to withdraw the NOR
and the hearing has already been scheduled, the IC will send a cancellation
notice to all parties explaining the reason for the cancellation of the hearing.
c) If the
Hearing Administrator does not agree to allow claims services staff to withdraw
the NOR, the hearing will go forward.
iv. Claims services
staff shall contact the IW and the employer, as applicable, to advise of the
status of the issue.
v. Claims
services staff shall not issue a BWC order, if one is needed, until claims
services staff receives a cancellation notice from the IC. Claims services
staff shall discuss with a BWC attorney any questions regarding whether an
order is appropriate.