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Policy and Procedure Name:
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Temporary Partial (TP) Compensation – Change of
Election
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Policy #:
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CP-20-03
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Code/Rule Reference:
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R.C. 4123.57 (prior to
08/22/86); Senate Bill (SB) 307-116th General Assembly,
approved 05/23/86 and codified into R.C. 4123.57 in which temporary partial
is no longer recognized as a compensation available in claims with a date of
injury 08/22/86 or later.
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Effective Date:
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05/12/2022
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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-20-03, 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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Table of Contents
I. POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
Change of election
Earning capacity
Temporary partial (TP) compensation
IV. POLICY
A. TP Process
B. TP Payments
V. PROCEDURE
A. General Claim Note and
Documentation Requirements
B. General procedures
applicable to TP Compensation – Change of Election
The purpose of this policy is to ensure that BWC staff properly manages claims in which compensation
for temporary partial compensation – change of election (TP) is paid.
This policy applies to Field Operations staff.
Change of
election: Occurs when an injured worker
(IW) requests an impairment of earning capacity award paid bi-weekly until the
maximum is reached or requests a percentage of a permanent partial award for
medical impairment paid in one lump sum.
Earning
capacity: The estimated amount of money the IW could have earned or
could now earn.
Temporary
partial (TP) compensation: An award that,
when requested, is payable in claims with a date of injury (DOI) or date of
disability (DOD) prior to 08/22/86 and is based on the IW’s whole-body impairment
as the result of the allowed conditions in the claim. The award is based on a
comparison between the IW’s earning capacity prior to the injury and the
earning capacity after the injury.
1. It is the
policy of BWC to process TP claims that meet the
following criteria:
a.
The DOI or DOD was prior to 08/22/86;
and
b.
The IW demonstrated impairment in
earning capacity; and
c.
The IW has elected to receive TP;
or
d.
The IW has a date of injury prior to
08/22/86, and he/she is receiving benefits under R.C. 4123.57(B) and has
requested a change of election pursuant to R.C. 4123.57(A).
2.
It is BWC’s policy to refer new
requests for TP to the Industrial Commission of Ohio (IC).
1.
State, ex
rel. Bouchonville v. Indus. Comm.,
(1988), 36 Ohio St.3d 50
a. It is
BWC’s policy that claims with previous IC or BWC orders awarding TP pursuant to
the Bouchonville court case be calculated in accordance with this
case.
b. Pursuant
to the Bouchonville case, TP is paid up to the maximum amount for the
injury year, less any previously paid percent permanent partial (%PP).
c.
The IW does not have to submit
an Employer Report of Earnings for Wage Loss Compensation (C-142).
d.
BWC shall continue to pay TP when a
wage statement is filed to support the payment.
i.
An employer’s objection to ongoing TP
payment, with or without evidence for the objection, shall be referred to the
IC for Hearing.
ii.
TP shall continue to be paid with
supporting wage statements pending the outcome of the hearing.
2. State, ex
rel. Eaton corp., v. Industrial Comm., (1993), 66 Ohio St. 3d 180
a.
It is BWC’s policy that orders awarding
TP pursuant to the Eaton court case require the IW to demonstrate
that the IW’s earning capacity post-injury has been impaired compared to the
pre-injury earning capacity.
b.
The determination of pre-injury and
post-injury earning capacity is based on both physical and non-medical factors
(e.g., age, level of education, work experience, training).
3. Concurrent
Payments
a.
Same claim:
i.
It is BWC’s policy that the following
compensation types, when paid in the same claim, are payable concurrently with
TP:
a) Scheduled loss
(SL);
b) Facial
disfigurement (FD); and
c) Violation
of specific safety requirements (VSSR).
ii.
It is BWC’s policy that the following
compensation types, when paid in the same claim, are not payable concurrently
with TP:
a) Change of
occupation (COO);
b) Death (accrued
up to the date of death);
c) Disabled
workers’ relief fund (DWRF);
d) Living
maintenance (LM);
e) Living
maintenance wage loss (LMWL);
f) %
Permanent partial (%PP);
g) Permanent total
disability (PTD);
h) Temporary total
(TT); and
i) Wage
loss (WL).
b.
Different claim:
i.
It is BWC’s policy that the following
compensation types, when paid in a different claim of the IW’s, are payable
concurrently with TP:
a) SL;
b) %PP;
c) FD; and
d) VSSR.
ii.
It is BWC’s policy that the following
compensation types, when paid in a different claim of the IW’s, are not payable
concurrently with TP:
a) COO;
b) Death;
c) DWRF;
d) LM;
e) LMWL;
f) PTD;
g) TP;
h) TT; and
i) WL.
4. When the
IW requests a change of election, it is BWC’s policy to deduct any previously
paid percentage of permanent partial (%PP) compensation granted under R.C.
4123.57(B) from the TP award.
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. Evaluating
the evidence
a. Field staff
shall ensure that requests for TP compensation are for claims with a date of
injury (DOI)/date of disease (DOD) prior to 08/22/86.
b. Field
staff shall review the motion (C-86) to ensure that supporting evidence is
included, which may include:
i. Medical
documentation from the physician of record (POR);
ii. A
vocational evaluation or assessment;
iii. A job
description;
iv. A notarized wage
statement, payroll records or check stubs for the specific period worked and
the gross wages earned; or
v. If the IW
is unemployed, a signed and notarized wage statement indicating the specific period
the IW has not worked.
c. If
information is missing, field staff shall call the IW and/or authorized
representative to request the information.
i. If
telephone contact is unsuccessful, field staff shall send an email or
correspondence to the IW and/or the authorized representative.
ii. Field
staff shall refer to the BWC Motions policy and procedure on handling
requests when all supporting necessary information is not received despite
attempts made to acquire supporting evidence.
d. For requests
for a change of election, field staff shall gather evidence to support the
reason for a change of election from R.C. 4123.57(B) to R.C. 4123.57(A), or
vice versa.
e. Once all
necessary information is gathered, field staff shall complete a “Notice of
Referral” (NOR) and send any request for TP or any request for change of
election to the Industrial Commission of Ohio (IC).
2. Field
staff shall calculate and pay TP as follows:
a. If the IC
grants an IW’s request for a change of election, field staff shall deduct 100%
of any previously paid percentage of permanent partial (%PP) compensation
granted under R.C. 4123.57(B) from the TP award.
b. Field
staff shall review the IC Order to determine how to pay the award. The IC Order
will dictate payment with one of the following cases.
i. If
the IC orders BWC to pay the IW in accordance with State, ex rel. Bouchonville
v. Indus. Comm., (1988), 36 Ohio St.3d 50:
a) Field staff
shall calculate as follows:
i) Multiply
the medical impairment percentage (MI%) in the IC order by the average weekly
wage (AWW).
ii) Then,
multiply that amount by two-thirds. This is the TP weekly rate.
b) Field staff
shall pay TP as calculated in B.2.a., above, up to the maximum amount based on
the date of injury. The maximum amount payable is available on the Compensation
Rate Chart located on claims on-line resources (COR).
c) Field
staff shall not require the Employer Report of Earnings for Wage Loss
Compensation (C-142).
ii. If the IC
orders BWC to pay the IW in accordance with State, ex rel. Eaton corp., v.
Industrial Comm., (1993), 66 Ohio St. 3d 180, field staff shall calculate as
follows:
a) Calculate the
difference between the post-injury and pre-injury earning capacity; and
b) Multiply the
amount by 66 2/3 percent to arrive at the TP rate;
iii. Medical
Impairment vs. Actual Impairment - Field staff shall calculate claims with IC
Orders awarding TP prior to the Bouchonville and Eaton cases as
follows:
a) When the IW is
not employed:
i)
Multiply the medical
impairment percentage (MI %) in the IC Order by the AWW;
ii)
Then multiply the
medical impairment amount by two-thirds to obtain the TP weekly rate;
iii)
Then multiply the MI
% by the AWW; and
iv)
Then multiply by
two-thirds to get the medical impairment TP rate.
b) When the IW is
employed:
i)
Compute the medical
impairment TP rate (see above);
ii)
Count the number of
days between the first day of the pay period and the pay period ending date for
the period requested with submission of earnings statement;
iii)
Then add the total
wages earned during the period found in “b” of this section, excluding
vacation, compensatory time, bonus, etc.;
iv)
Then multiply those
wages by 7;
v)
Next, divide by the
number of days found in “b” of this section to obtain the average amount the IW
earned per week;
vi)
Then subtract amount
in “e” of this section from the AWW to obtain the actual wage impairment; and
vii)
Then multiply the
actual wage impairment by two-thirds to obtain the rate payable.
c) Field
staff shall pay the lesser of the medical impairment rate and the actual wage
impairment rate up to the maximum rate.