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Policy and Procedure Name:
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Orders, Waivers, Appeals and Hearings
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Policy #:
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CP-15-01
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Code/Rule Reference:
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O.R.C 4123.511, 4121.36, 4121.35, 4123.57, 4123.512,
4123.511 and 4123.522
O.A.C 4123-6-16, 4121-3-09, 4123-3-18, 4121-3-30,
4123-3-09, 4123-3-36 and 4123-3-32
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Effective Date:
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08/28/20
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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-15-01, effective 11/14/16 and Procedure # CP-15-01.PR1,
effective 11/14/16
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History:
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Previous versions of this policy are available upon
request
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Orders, Waivers, Appeals, Hearings Table of Contents
I. POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
Appeal
Hearing
Order
Parties to a Claim
Waiver
IV. POLICY
A. Requirements
B. Types of BWC Orders
C. Waivers
D. Appeals to BWC Orders
V. PROCEDURE
A. General Claim Note and
Documentation Requirements
B. BWC Orders
C. Waivers
D. Appeals to BWC Orders
E. Industrial Commission
Hearings and Claims with the Attorney General’s Office
F. Issuing Payment of
Comp/Med Benefits After Issuance of an IC or BWC Order
The purpose of this policy is to ensure that BWC publishes
and/or executes orders, waivers and appeals in compliance with law and
administrative rules.
This policy applies to all BWC staff.
Appeal:
A formal request for a change in, or reconsideration of, a decision.
Hearing:
A meeting wherein the parties to a claim are afforded an opportunity to present evidence and
be heard before the Industrial Commission (IC) of Ohio, the statutorily mandated
adjudicatory body for workers’ compensation issues.
Order:
The written notification of a decision made by BWC or the IC from the evidence
gathered in a claim.
Parties to a
Claim: Claimant, claimant representative, employer, employer
representative, and BWC.
Waiver:
A document or formal statement signed by parties to a claim agreeing to
immediate implementation of orders issued by BWC and the IC. The waiver does
not affect any past or future orders pertaining to the claim file; only the
order currently being waived.
1. It is BWC’s
policy to process and publish BWC orders and waivers, process appeals, and
perfect IC Orders in accordance with legally mandated timeframes.
2. A BWC Order is
required for all initial and subsequent determinations in claims in which BWC
has jurisdiction.
3. It is BWC’s
policy to perfect only signed court orders or IC Court Unit memos.
: Refer to section V.B.3.a-j for
specific information about individual order types and their uses.
1. When all parties
agree in writing to waive their right to appeal an order, it is BWC’s policy to
consider the order as immediately effective.
2. If the employer
of record is out of business or in a final cancelled status, it is BWC’s policy
that a waiver is not required from the employer of record.
1. Who can appeal: A party to the claim who disagrees
with the BWC Order may appeal the decision to the IC, thereby asking that a hearing be held to further evaluate the merits of
the claim.
2.
How to Appeal:
a. Notice of
Appeal (IC-12) form;
b. On a letter that
contains all elements of the IC-12;
c. Online at
www.ic.ohio.gov through the Industrial Commission Online Network (I.C.O.N.);
d. All appeals
shall be in writing.
3. The appeal
periods for BWC Orders are:
a. Tentative Orders
- The objection (appeal) period expires twenty (20) days from the printing of
the TO;
b. All other orders
- 14 days after the date of receipt of the Order.
4. Appeal timeline
considerations:
a.
Faxes not received by the IC
or the BWC during core business hours shall be considered received and filed on
the next business day (core business hours are from 8:00 a.m. to 5:00 p.m.);
5. If evidence is
submitted after an appeal is filed and the appeal is not withdrawn, BWC no
longer has jurisdiction to reconsider that decision. However, BWC can obtain
additional evidence during the hearing process to support its position.
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.
1. Creating a BWC order
a. Claims services
staff shall generate the BWC order through the claims management system.
b. Claims services
staff shall display and review the order prior to publishing.
2. Claims services
staff shall include the following in all orders:
a. The
request/issue the order is addressing.
b. BWC’s decision.
c. Evidence relied
upon to make the decision on the request/issue must be stated in the order
including a detailed description of specific factual and/or medical evidence
used as the basis for the decision.
i. Claims
services staff shall not paraphrase from a medical report; only exact quotes
shall be used.
ii. Claims
services staff shall avoid providing an opinion or comment on the weight,
credibility or significance of a medical report unless advised to do so by BWC
legal.
d. The declared
amount of the full weekly wage (FWW)/average weekly wage (AWW) following the Wages
policy and procedure when:
i. Wage
information is available;
ii. Compensation
has or will be requested;
iii. A request to set
wages has been submitted; and
iv. Wages haven’t already
been set.
e. The type of
compensation to be paid and the period of the award.
f. Any
information included in the sections below on specific orders.
3. Specific Types
of BWC Orders
a. Initial
Allowance Order
i. Published
when granting the initial allowance of a claim for payment of medical benefits
and/or compensation.
a) For a medical
only claim, this order shall address claim allowance and the payment of medical
benefits.
b) For a lost time
claim, this order shall address claim allowance, the payment of medical
benefits and payment of compensation.
ii. The
following issues may also be addressed:
a) Setting of the
full weekly wage (FWW) and average weekly wage (AWW);
b) Temporary Total
Compensation (TT);
c) First seven days
of lost time;
d) Non-complying
employers (no coverage);
e) Scheduled Loss
Compensation Awards (loss of use, amputation, loss of vision, and loss of
hearing);
f) Salary
Continuation.
iii.
Claims services staff shall address all valid conditions alleged on the
First Report of Injury (FROI).
a) Claims services
staff shall only allow conditions that are causally related to the injury and
have supporting medical documentation. However, medical documentation may not
be required for minor injuries as noted in the Medical
Evidence for Diagnosis Determinations (MEDD) policy and procedure.
b) Claims services
staff shall deny conditions that are not supported by medical documentation or
are not causally related.
c)
Claims services staff shall not deny a condition when some evidence is
submitted but it is not conclusive enough to support the condition unless it is
the only condition requested.
i) When
the evidence is inconclusive, the order shall include a statement that this
condition is neither allowed nor disallowed but shall be considered upon
submission of additional proof and a formal request if required.
ii) When
additional supporting documentation is filed within the appeal period, claims
services staff shall reconsider conditions that were requested on the FROI but
were not previously allowed or denied. If the documentation is submitted after
the appeal period has expired, claims services staff shall follow the Additional
Allowance policy.
iv. If compensation is
requested after the initial allowance order has been issued but no appeal has
been filed and the appeal period has not expired, claims services staff may vacate
the initial allowance order and issue a new order addressing compensation.
v.
Claims services staff shall ensure:
a) A description of
the injury is in in the order.
b) The description
includes information received on the FROI and/or during the investigation
c) The description
is spelled correctly and is grammatically correct.
vi. Claims services staff
shall use the “based on” texts in the Initial Allowance Order.
a) The first “based
on” text is for specific information relied upon to make the decision. An
example of language to be used in the “based on” text for the decision:
"This decision is based on the medical report from Dr. W. Zimmerman, D.O.,
dated 05/13/19, and the MRI report dated 05/13/19, which states the diagnosis
of herniated lumbar disc L4-5 is directly and causally related to the
industrial injury of 05/10/19.”
b) The second
“based on” text is the “compensation based on” section and shall be used if
wages are being set or if compensation is being ordered. An example of language
to be used in the “compensation based on” text: “The information regarding
salary continuation was based on the signed C-55 dated 9/10/2019”; or, “wages
were set based on the 52 weeks of earnings received from the employer of record
and the injured worker’s part time job at City Window Cleaning”; or, “TT
compensation was based on the C-84 dated 09/03/2019 from Dr. Jones.”
b. BWC Initial
Auto Adjudication Allowance Order
i. Published
systematically by the claims management system when an initial claim meets a
set of criteria that causes the claims management system to automatically
generate this allowance order;
ii. The claim
status is systematically updated to “Allow.”
iii. All parties
retain their appeal rights.
c. BWC
Initial Denial Order
i. Published
when denying an initial allowance of a claim.
ii. Claims
services staff shall include a description of the injury in the BWC Initial
Denial Order. The description shall include information received on the FROI
and/or during the investigation.
iii. The most common
reasons BWC will deny a claim include:
a) The employee did
not sustain an injury in the course of and arising out of employment;
b) There is no
evidence to support the injury or occupational disease, e.g., claim is alleged
for exposure only;
c) There is no
medical relationship between the diagnosed condition and the described
injury/occupational disease;
d) There is no Ohio
jurisdiction;
e) There is not an
employee/employer relationship.
iv. Claims services staff
may also deny a claim for any reason found in the Initial Denial Order inserts
on COR.
d. BWC Abate
Order – Claims services staff shall use this order to notify the dependent
that the claim application has been abated by the death of the claimant.
e. BWC
Subsequent Decision Order
i. BWC subsequent
decisions are published when granting a request for action after the initial
claim determination or when issues are identified after the initial allowance
of the claim;
ii. Is only
available for accident and occupational disease claims;
iii. The following
are types of issues that staff may address in a BWC Subsequent Decision Order:
a) Additional
allowance;
b) Payment of
Temporary Total Disability compensation used for new periods of TT for lost
time claims or for medical only changeovers when the appeal period for the
Initial Allowance Order has expired;
c) Wage
information, including setting AWW for payment of a Percent of Permanent
Partial Impairment (C-92) award;
d) Wage Loss;
e) Facial
Disfigurement;
f) Change of
Occupation;
g) Proactive
allowance of an additional condition;
h) Permanent
Partial (including loss of use, amputation, loss of vision, loss of hearing);
i) Permanent
Total Disability (PTD) rate adjustment;
j) The
amount and reason for the injured worker’s overpayment;
k) Physician of
Record (POR) or treating physician has submitted a statement that the IW has
reached maximum medical improvement (MMI) for all allowed conditions;
l) POR
or treating physician has submitted a statement that the IW is released to the
former position of employment without restrictions.
iv. BWC does not have authority
to deny a subsequent request except for requests for medical treatment (via
Alternative Dispute Resolution Order), lump sum advancement, medication
reimbursement, and travel reimbursement (via Miscellaneous Order.)
v. Claims
services staff shall issue a BWC Subsequent Decision Order to address
compensation allowances if compensation is requested after an initial order has
been issued and the appeal period has expired.
vi. A BWC Subsequent Decision
Order should not be issued while the allowance of the claim is under appeal. However,
one possible exception is to issue an order for wages if there’s a hearing
order that grants compensation and wages have not been set.
vii. The print location for this
order defaults to central printing, but “Print to S.O.” can be selected. Claims
services staff shall only print to the service office if it is necessary to
attach additional documentation to the order.
viii. When setting wages and paying a
C-92 award at the same time, claims services staff shall issue two separate
orders.
a) A BWC Subsequent
Decision Order is issued to set the wages, and a BWC Tentative Order (TO) is
issued to pay the Percentage of Permanent Partial Disability (%PP) award.
b) Two separate
orders are issued because of the difference in the appeal periods. The
Tentative Order has a 20-day objection (appeal) period and the Subsequent
Decision Order has a 14-day appeal period.
f. BWC
Miscellaneous Order
i. The
following are types of issues that staff shall address in a BWC Miscellaneous Order:
a) Initial Claim
Dismissal;
b) Participation in
vocational rehabilitation (including Living Maintenance);
c) LMWL; and
d) Any other issue
not covered specifically by any other order.
ii. Staff
shall refer to the individual policy and procedures for specific instructions.
g.
BWC Death Allow Order
i. Claims
services staff shall publish the BWC Death Allow Order to:
a) Grant death
benefits and apportion benefits between dependents, either as the initial
decision in the claim or as a subsequent decision on an existing claim; and
b) Reapportion
death benefits between dependents and to award accrued compensation in claims
where death benefits have been allowed.
ii.
Staff shall refer to the Death policy and procedures for specific
instructions.
h. BWC Death
Deny Order
i. Claims
services staff shall publish the BWC Death Deny Order to communicate BWC’s
decision to deny death benefits, either as the initial decision in the claim or
as a subsequent decision in an existing claim
ii. Claims
services staff shall refer to the Death policy and procedures for
specific instructions.
i. BWC
Alternative Dispute Resolution (ADR) Order
i. ADR
orders are published to communicate the determination of medical disputes.
ii. Information
needed to generate an ADR order is entered by the MCO on behalf of BWC and the
order is printed and mailed by central printing.
j. BWC
DWRF (Disabled Workers’ Relief Fund) Order
i. Published
to communicate a decision on the IW’s entitlement to DWRF benefits per the PTD
and DWRF policy and procedure.
ii. Types of
issues that may be addressed in the BWC DWRF Order are:
a) Entitlement to
DWRF;
b) Non-entitlement
to DWRF;
c) Social Security Disability
Rate;
d) Permanent Total
Disability (PTD) Declared Rate;
e) Adjustment for
increase or decrease in the DWRF Rate;
f) Overpayment
of DWRF Benefits;
g) Stopping DWRF.
k. BWC
Tentative Order (TO)
i. Published
to either grant or deny an initial determination or subsequent increase of
percentage of permanent partial disability.
ii. Has a
20-day objection period;
iii. Claims services
staff shall refer to the Percentage
of Permanent Partial Awards policy and procedures for specific
instructions.
4. Vacating an
Order and Issuing a New Order
a. Claims services staff
may vacate the order and issue a new order when:
i. New
and changed circumstances, corrections to specific conditions and/or body parts,
and/or clear clerical errors have occurred after issuance of the order. Common
reasons to vacate a BWC order and issue a new order include:
a) Changes to
compensation payments (type, period or rate);
b) Changes to the
original decision (allow/deny);
c) Changes to
specific conditions;
d) Changing the
part of body from right to left or left to right;
e) Correcting an
employer of record;
f) Correcting
a date of injury;
g) Modifying the
diagnosis/condition. The ICD
Modification policy shall be followed.
ii. Requested
evidence is received after the determination has been issued via a BWC Order but
no appeal has been filed, and that evidence changes the decision;
iii. Or all parties
agree.
b. Claims services staff may
vacate an order and issue a new one within the following time periods:
i. Within
Appeal Period and No Appeal Filed
a) Claims services
staff shall review the evidence received and determine if the evidence supports
a change to the BWC Order.
b) If evidence is
submitted within the appeal period, no appeal has been filed, and all parties
to the claim agree, claims services staff can vacate the BWC Order and issue a
new, corrected BWC order.
c) In all
situations except those involving initial determination, when all parties do
not agree to the modification, claims services staff shall refer the claim to
the IC.
ii. Within
Appeal Period and Appeal has been Filed
a) Claims services
staff shall review the new evidence to determine if the evidence changes the
published decision. At that time, although the IC has jurisdiction, BWC may
approach the parties and discuss the parties’ option to withdraw the appeal so
that BWC can issue a new order. If the parties agrees, staff may vacate the
original order and issue a new order.
i) The
appeal must be withdrawn in writing during the appeal period.
ii) If the
appeal is withdrawn and all parties to the claim agree, claims services staff
shall vacate the BWC Order and immediately issue the new, corrected BWC order.
iii) If the withdrawal is
received by BWC and the claim is currently at the IC, BWC shall notify the IC.
If the withdrawal is received at the IC, the IC shall notify BWC.
iv) If the appealing party
does not wish to withdraw the appeal, the IC shall process the appeal. Claims
services staff shall ensure the new evidence is made available for the IC’s
consideration of the appeal.
b) Claims services
staff shall follow the Notice
of Referral policy if evidence is submitted after an appeal is filed
and the appeal is not withdrawn.
iii. After Expiration
of the Appeal Period and no Appeal was Filed
a) A new original
order may be issued after the expiration of the appeal period with agreement
from all parties of the claim.
b) Example: Claim
was originally allowed for shoulder sprain based on the medical documentation
submitted by the emergency department. One week after the expiration of the
appeal period the orthopedic surgeon submits office notes and an MRI report
indicating the IW did not suffer a strain but instead diagnoses the IW with a
rotator cuff tear. Claims services staff shall follow the ICD
Modification policy and if the parties agree, the original order shall
be vacated and a new original order shall be issued.
c) If claims
services staff believes that the original order contains an error, but all
parties do not agree to a change, claims services staff shall consult with the
local BWC attorney as to whether a motion for continuing jurisdiction is
warranted (i.e., a mistake of fact, mistake of law, clerical error or new and
changed circumstances).
i) If a
motion for continuing jurisdiction is completed by the BWC attorney, claims
services staff will complete the “Notice of Referral” (NOR) referencing the BWC
Attorney’s motion.
ii) The
documentation shall be imaged, and the IC will obtain all claim information
though a systematic transfer of information prior to the IC hearing.
c. Creating the New Order
After the Order has been Vacated
i. Claims
services staff shall always vacate an order when it is being replaced with a
new order. All issues that were addressed in the original order must be
repeated in the new order.
ii. When
vacating an order and issuing a new order, claims services staff shall use the
“Vacated” button, which will automatically insert a paragraph stating the
original order is being vacated and allows claims services staff to choose the
reason the order is being vacated.
iii. For orders that
do not have the “Vacated” button option available, claims services staff shall
enter the following statement in the free form text area of the order: “This
order replaces the BWC Order dated <enter date> which is now vacated
because <<reason order is being vacated>>.”
iv. The new order shall
cite specific changes to the previous order and include in the “based on” text
area the new information or evidence that was received which changed the
previous decision.
v. The new
BWC Order shall begin a new appeal period.
5. Time Frames for Publishing a BWC Order
a. Claims services staff
shall publish the BWC Initial Allowance or BWC Initial Denial Order no later
than twenty-eight (28) days after claim notification (the date the Initial
Notification Letter is sent in the claims management system).
b. If a medical
examination is statutorily required for an initial determination, the time
limit for the BWC Order shall be extended. The examination should be promptly
scheduled and the BWC Order published no later than twenty-eight (28) days from
receipt of the examination report.
c. An order may be issued
once the investigation of the claim is complete and BWC has reached a decision,
regardless of employer certification. However, BWC shall continue to actively
pursue employer certification during the initial investigation of the claim.
d. ADR orders are
systematically generated within seven (7) days after the MCO’s receipt of the
ADR IME report.
e. Claims services staff
shall follow any Claims Services directives regarding time frames for orders.
f. Prior to completing a
task on the claims management system, staff shall review all open orders with
overlapping or concurrent appeal periods and ensure they are completing the
correct task.
1. Who can waive:
a. IW/Claimant and
IW/Claimant representative;
b. Employer and
Employer representative;
c. BWC attorney
can waive an IC notice of hearing or IC order.
2. The third-party
administrator (TPA) or other non-lawyer legally cannot independently waive
proper notice of hearing or waive the right to appeal on behalf of any party.
They may submit a waiver, but the waiver shall indicate they are doing so at
the direction of the employer and not at the independent discretion of the TPA.
3. How to waive:
a. Waiver of
Appeal Period (C-108);
b. Letter that
contains all elements of the C-108;
c. Online at www.bwc.ohio.gov/or
www.ic.ohio.gov.
4. How to submit
waiver:
a. Fax;
b. Scanned and
emailed;
c. Physical
delivery of the waiver to BWC or the IC.
5. To release
payment prior to the expiration of an appeal period, parties to the claim must
waive in writing. If the award relates to compensation only, no waiver is
required from the IW.
6. The waiver does
not affect any past or future orders pertaining to the claim.
7. Claims services staff
shall enter notes summarizing the waivers and shall update the order status in
the claims management system.
8. Claims services
staff shall process an appeal and stop any payments during an appeal period
even if a waiver was previously received by the appealing party.
1. Claims services
staff shall review the appeal for timeliness, incorporating the Mailbox Rule
policy, so that BWC can assign the appropriate claim status prior to the appeal
being heard by the IC.
2. If BWC estimates
an appeal has been filed within the appeal period:
a. Claims services staff shall
image and index any appeal stamped “Tracked on IR” in application tracking.
When the appeal is stamped “Tracked on IR” it has already been processed with
the IC and does not need to be forwarded to them. When the appeal appears on
the claims services staff’s work list, a note/task shall be entered indicating
the issue, party filing, and date.
b. The IC shall obtain all
claim documents through a systematic transfer of information prior to the IC
hearing.
c. If claims services staff
receives evidence which might cause the appealing party to reconsider,
(especially issues involving clear clerical error) he/she shall contact the
party that filed the appeal to discuss the evidence received and provide an
opportunity for the party to withdraw the appeal. The party can withdraw the
appeal, in writing, during the appeal period. If the withdrawal is received by
BWC, the withdrawal shall be imaged into the claim file and a NOR must be completed.
If the withdrawal is received at the IC, the IC shall notify BWC. The IC should
send BWC a copy of the ex parte order officially recognizing the withdrawal of
the appeal or a notice that the hearing on the issue has been cancelled.
d. If the claim was
certified and compensation was being paid at the time of the appeal, claims
services staff shall place the claim in Hearing status and stop compensation
until a District Hearing Officer (DHO) decision is issued.
3. If BWC estimates
an appeal has been filed after expiration of the appeal period:
a. Claims services staff
shall ensure the appeal is imaged into the claim.
b. Shall complete a NOR if
the appeal has not been stamped as “Tracked on IR”.
c. Claims services staff
shall keep the claim in the status as determined by the Initial Determination
Order.
d. Claims services staff
shall rename all documents imaged in the claims management system.
1. If claims
services staff believes there is an error in an IC order that needs to be corrected:
a. Claims services staff
shall staff clerical errors on IC orders with the supervisor.
b. If the supervisor
determines the error may need to be corrected, the supervisor may discuss the
issue with the local BWC attorney.
c. If further discussion
or clarification is needed the local BWC attorney or the supervisor may contact
the IC Regional Manager.
d. BWC shall file the Request
for Corrected Order (IC-13) if the BWC attorney determines a corrected
order is necessary.
2. If a subsequent
request is filed with BWC when a claim is at the Attorney General’s office on
appeal, claims services staff shall refer to the chart Processing Subsequent
Requests for Attorney General Appeals to determine when a subsequent
request for action can be processed.
3. Claims services staff
shall implement a court order only upon the receipt of the signed IC Court Unit
memo.
4. Emergency
Hearings
a. For information about
emergency hearings or to request an emergency hearing, claims services staff shall
notify the IW to contact the IC.
b. Claims services staff
may notify injured workers experiencing financial emergencies that the IW may
be eligible for certain federal and state benefits in addition to workers’
compensation.
c. Claims services staff
may suggest that the IW contact his or her attorney or the county Ohio
Department of Jobs and Family Services (ODJFS) for information regarding
financial assistance that may also be available.
d. Claims services staff
shall notify BWC of any emergency hearing so that BWC Law may determine if BWC
hearing representation is necessary.
1. Claims services
staff shall pay all compensation except Percent of Permanent Partial Impairment
beginning the earlier of the following:
a. The expiration of the
appeal period if no appeal to an order has been filed, following the Mailbox Rule policy;
b. The date when the
employer has waived the right to appeal a decision;
c. Upon issuance of the
Initial Allowance Order if the claim is certified by the employer or an
employer waiver is received; or,
d. The date the DHO, Staff
Hearing Officer (SHO), or IC Order is received by the employer.
2. Claims services
staff shall pay Percent of Permanent Partial Impairment when the order granting
the award becomes final or upon receipt of the SHO order.
3. Payment of
medical benefits begins the earlier of the following:
a. The date the order is
issued by an SHO or,
b. The date of the final
administrative or judicial determination. This includes the date the appeal
rights are waived by the employer.
4. If the claim
meets the Fast Response criteria as defined in the Initial Determination
policy, immediate payment can be made upon issuance of the BWC Order regardless
of employer certification.
5. Claims services
staff shall issue an order and hold payment of compensation and benefits until
the expiration of the appeal period or a written waiver from the employer is
received if the undetermined claim is not certified by the employer. A waiver
from the injured worker is not required to pay compensation.
6. Additional
information can be found on the Orders Quick Reference Guide.