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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 TP compensation is paid.
This
policy applies to claims services 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 they are receiving benefits
under R.C. 4123.57(B), and they have requested a change of election pursuant to
R.C. 4123.57(A).
2. BWC
will refer new requests for TP to the Ohio Industrial Commission (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 percentage of permanent partial
disability (%PP) compensation.
c. The
IW does not have to submit an Employer Report of Earnings for Wage Loss
Compensation (C-142).
d. BWC
will continue to pay TP when a wage statement is filed to support the payment.
i.
BWC will refer an employer’s objection to ongoing TP payment, with
or without evidence for the objection, to the IC for hearing.
ii. BWC
will continue to pay TP 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;
d) Living
maintenance (LM);
e) Living
maintenance wage loss (LMWL);
f) %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) Disabled
workers’ relief fund;
d) LM;
e) LMWL;
f) PTD;
g) TP;
h) TT; and
i)
WL.
4. When the IW
requests a change of election, BWC will deduct any previously paid %PP
compensation granted under R.C. 4123.57(B) from the TP award.
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.
1. Evaluating the
evidence
a. Claims services
staff must 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. Claims services
staff will 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, claims services staff must call the IW and/or authorized
representative to request the information.
i.
If
telephone contact is unsuccessful, claims services staff will send an email or
correspondence to the IW and/or the authorized representative.
ii. Claims services
staff will 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, claims services staff must 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, claims services staff will 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. Claims services
staff will calculate and pay TP as follows:
a. If the IC
grants an IW’s request for a change of election, claims services staff will
deduct 100% of any previously paid %PP compensation granted under R.C.
4123.57(B) from the TP award.
b. Claims services
staff will 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) Claims services
staff will 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) Claims services
staff will 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 COR.
c) Claims services
staff will not require the 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, claims services staff will 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 – Claims services staff will 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 seven;
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) Claims services
staff will pay the lesser of the medical impairment rate and the actual wage
impairment rate up to the maximum rate.