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Policy and Procedure Name:
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Violation of Specific Safety Requirement (VSSR)
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Policy #:
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CP-22-01
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Code/Rule Reference:
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R.C. 4121.13 and 4121.47;
O.A.C. 4121-3-20
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Industrial Commission (IC) Resolution/Memo
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Adjudications Before the Ohio Industrial Commission
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Effective Date:
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04/15/22
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Approved:
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Ann 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-#22-01, effective 11/14/16; and
Procedure # CP-22-01.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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Table of Contents
I. POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
Civil Penalty
Claimant
Dependent
Site Employer
Violation of a Specific Safety
Requirement (VSSR)
IV. POLICY
A. Processing
of Applications for VSSR Awards and Settlements
B. VSSR
Awards- General Information
C. Applications
for VSSR Awards
D. VSSR
Investigation
E. Initial
IC Decision on Application for VSSR Award
F. VSSR
Awards in Claims Where a Temporary Agency or Professional Employer Organization
(PEO) is the Employer
G. Calculating
a VSSR Award
H. Paying
a VSSR Award
I. Holding
or Stopping Payment of a VSSR Award
J. VSSR
Settlements
K. VSSR
Overpayments
V. PROCEDURE
A. General
Claim Note and Documentation Requirements
B. Receipt
of a VSSR Application
C. SVIU
VSSR Investigation
D. Initial
IC Decision on Application for VSSR Award
E. Calculating
the VSSR Award
F. Paying
the VSSR Award
G. VSSR
Settlements
H. VSSR
Overpayments
The purpose of this policy is to
ensure that BWC appropriately processes VSSR applications to transfer to the
Industrial Commission of Ohio (IC), investigates allegations of VSSRs when
requested to do so and executes an IC order when the IC determines a VSSR has
occurred.
This policy applies to BWC claims
services staff and the Safety Violations Investigation Unit (SVIU).
Civil Penalty:
A fine, separate from the VSSR award, levied against
the employer and generally punitive in nature.
Claimant: One who asserts a right, demand or claim for workers’
compensation benefits. For purposes of this policy, a claimant is considered
the injured worker (IW) or a dependent.
Dependent: A member of the family of the decedent or bears to the
decedent the relation of surviving spouse, lineal descendant, ancestor, or
brother or sister who relied on the decedent for financial support.
Site Employer:
The employer to whom a worker was assigned by a
temporary agency or a professional employer organization, and that controls the
actual place of employment or work site including, but not limited to, the
labor, safety devices, safeguards and other means of protection for the
workers, who may or may not be actual employees, as defined in R.C. 4123.01.
Violation of a Specific Safety
Requirement (VSSR): For purposes of
this policy, violations of labor, safety devices, safeguards, or other means or
methods of protection adapted to render the employees of every employment and
place of employment and frequenters of every place of employment safe, or
violations that fail to enforce reasonable orders for the adoption of the
above.
1. It
is the policy of BWC to process applications for VSSR awards and settlements by
ensuring the IC receives VSSR applications filed directly with BWC;
2. Investigating
the VSSR upon request by the IC; and
3. Executing
any order when the IC determines a VSSR has occurred.
1. VSSR
awards attach to any type of compensation paid to the claimant;
2. VSSR
awards are direct billed to the employer for reimbursement, unless the employer
settles the VSSR liability or is out of business; and
3. VSSR
awards are not included in the employer’s experience.
1. Claimants seeking a VSSR award should complete an Application for Additional Award for Violation of Specific
Safety Requirement in a Workers’ Compensation Claim (IC-8/9).
2. A claimant must file an IC-8/9 within one year of the date
of injury, death or disability caused by an occupational disease.
3. An IC-8/9 may be filed with BWC, but the IC has
jurisdiction over the application and determination process.
4. Amendments to applications filed with BWC will be
immediately transmitted to the IC.
1. If the IC determines that additional information is needed
to make a determination on a VSSR application, the IC may request that the BWC
SVIU investigate.
2. Upon the IC’s request for an investigation, SVIU will
conduct an impartial investigation and submit a report of investigation (ROI)
to the IC.
3. The IC will then send copies of the ROI to all parties to
the claim and their authorized representatives. The parties have 30 days after
the mailing of the report to review and provide supplemental information to the
IC, or to request an extension, not to exceed an additional 30 days.
4. The IC may also hold a pre-hearing conference to review
information, discuss settlement possibilities or set a date for a merit
hearing. Parties should refer to the IC’s website for further direction regarding VSSR hearings.
1. It is the policy of BWC to properly execute IC orders.
2. If the IC issues a VSSR order in which the employer is
directed to correct a violation, SVIU may revisit the employer to ensure the
employer has complied with the IC order.
a.
If the employer has not corrected a
violation as required by order, BWC will refer the matter to the IC as provided
in O.A.C. 4121-3-20(G).
b.
BWC may also make a referral for
subsequent violations for consideration of civil penalties in accordance
with O.A.C. 4121-3-20(H).
1. The IC may differentiate liability between the temporary
agency or PEO employer and the site employer. While an IW may be deemed the
employee of a temporary agency or PEO, for purposes of a VSSR award or for any
penalty assessments, the IC may, and most likely will, designate the site
employer, rather than the temporary agency or PEO, as liable.
2. If the IC deems the site employer liable, the site
employer’s policy will be charged for the VSSR award, and any civil penalties
assigned by the IC.
1. The percentage of the VSSR award is determined by the IC in
an amount between 15 and 50 percent.
2. VSSR awards are calculated by taking the percentage awarded
by the IC and multiplying it by the maximum award allowable by law on the date
of injury (DOI) for any compensation type the IW is receiving.
3. If a VSSR award is made in a claim where the employer is or
was paying salary continuation, BWC will calculate the VSSR award based on the
SAWW for the period of time BWC would have paid temporary total compensation
(TT) to the IW.
1. VSSR awards are paid based on compensation previously and
currently awarded to the claimant, as well as all future payments.
2. The VSSR award may be larger than the actual award of
compensation being paid in the claim.
3. VSSR awards are paid concurrently with the compensation the
claimant is receiving from a claim at the time the award is granted.
4. BWC will release VSSR payments when compensation is paid to
the claimant.
5. BWC will not issue the initial VSSR award payment until at
least 30 days after the IC order is issued to ensure a request for rehearing is
not filed.
1.
BWC will hold or stop payment of a VSSR
award when a request for rehearing is pending with the IC; or
2.
When BWC receives notice that the
parties are settling either:
a.
The claim in which the VSSR is being
paid; or
b.
The liability for the VSSR award in the
claim, but not the source claim itself.
c.
In both settlement scenarios referenced
above, refer to the Refer to the Lump Sum Settlement policy
for additional information.
1.
VSSR Settlements with the Employer
a.
It is the policy of BWC that, if the
employer involved in the VSSR allegation is still in business, the employer is
responsible for entering into and paying the VSSR settlement.
b.
The employer and claimant may decide to
enter into a settlement agreement at any time prior to or following the IC
issuing a decision on the merits of the IC-8/9 application.
c.
These settlements must be approved by
the IC.
d.
While the IC order may not indicate
which party will pay the settlement, payment of the settlement is the
responsibility of the employer.
2.
VSSR Settlements with BWC
a.
BWC may enter into a VSSR settlement
with a claimant only when the employer is no longer in business. This may occur
prior to, or after an IC decision on the merits of the IC-8/9 application.
b.
When BWC is a party to a VSSR
settlement, BWC will release payment for the settlement no sooner than 30 days
after the settlement is approved.
3.
If an IW settles an employer’s VSSR
liability and then the IW subsequently dies, the dependents are not entitled to
a VSSR award, even if death benefits are awarded.
1. If the IC declares an overpayment on any type of
compensation for which a VSSR award was also paid, the VSSR payments, as well
as the compensation payments, are an overpayment.
a.
VSSR overpayments will be collected at
100% from future VSSR awards, including VSSR awards in any of the claimant’s
other claims.
b.
The IC does not have to declare the
VSSR award as overpaid if it has declared the compensation overpaid.
2.
When a court overturns an IC decision
to pay a VSSR, BWC will not recoup the resulting overpayment from the claimant.
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.
While an IC-8/9 may be filed with BWC,
the IC has jurisdiction over the determination process.
2.
The claims service specialist (CSS) will
review any IC-8/9 imaged into a claim file to determine if the VSSR application
was filed with BWC or the IC.
a.
If the application was filed with the IC and the imaged document contains an
IC date stamp, the CSS must:
i.
Create a legal case in the claim; and
ii. Update
the issue to hearing.
b.
If the application does not have an IC
date stamp, the CSS will:
i.
Create a legal case and select the event titled, “referred to the IC”;
ii. Complete
a Notice of Referral (NOR) to notify the IC that an IC-8/9 application has been
filed;
iii. Update the case
issue to hearing; and
iv. Document
in the claims management system:
a) That
a request for a VSSR award was filed, and who filed the request; and
b) All
available information as it relates to the VSSR (e.g., a temporary employment
or PEO/site employer situation).
1.
If the IC requires additional
information to make a determination on a VSSR application, it may request that
SVIU conduct an investigation.
2.
SVIU will conduct an impartial
investigation, which may include, but is not limited to:
a.
Inspecting the site where the injury
occurred;
b.
Conducting interviews;
c.
Taking statements;
d.
Collecting any pertinent documentation
(e.g., paperwork regarding the injury and incident, the equipment, employer
policy/procedure); and
e.
Taping and/or photographing the site
where the injury occurred.
3.
Upon completion of the investigation,
SVIU will provide a ROI to the IC.
4.
SVIU will terminate an investigation
prior to its conclusion when:
a.
The IC orders the matter be held in
abeyance at the request of all parties;
b.
The parties settle only the VSSR
liability, or settle the claim to include the VSSR liability; or
c.
The claimant withdraws the application.
1. If the IC grants a VSSR percentage award, the CSS assigned
to the claim will:
a.
Perfect the IC order;
b.
Calculate the VSSR award in accordance
with Section V.E of this procedure, outlined below; and
c.
Pay the VSSR award for any past and
future compensation awards in accordance with Section V.F of this
procedure, outlined below.
2.
If the IC denies a VSSR award, the CSS
will continue to manage the allowed claim pursuant to all applicable policies
and procedures, and no further action will be taken on the IC-8/9.
3.
Claims services staff must update
profile statements within the claims management system as appropriate.
1. The CSS will calculate the award based on the maximum
amount allowable by law in effect on the DOI for any compensation types the IW
is receiving. Staff may refer to the Compensation Rate Chart on COR
for assistance in determining this amount.
2.
The CSS will use the following
calculations to determine the VSSR award:
a.
For percent permanent partial (%PP)
awards:
i.
VSSR% x 1/3 Maximum SAWW x Weeks = Award which is the maximum rate for
%PP listed on the Compensation Rate Chart.
ii. Example:
IW is granted a 4% PP award, equating to 8 weeks of compensation. The IW was
also granted a 40% VSSR award. The SAWW %PP maximum is $279.33. Take 40% x
$279.33 x8 = $893.94.
b.
In cases of facial disfigurement:
i.
VSSR % x Maximum award allowable by law, regardless of the actual amount
awarded to the IW.
ii. Example:
An IW receives a facial disfigurement award on 8/1/2013 for $4,000. The IW also
receives a VSSR award of 40%. The maximum for facial disfigurement is $10,000.
Claims services staff will multiply 40% by $10,000, equaling a VSSR payment of
$4,000.
iii. Example: Facial
disfigurement award with a DOI on or before 6/29/2006 has a maximum award of
$5000. The IC issued a 40% VSSR award. The IW actually received a $3000 facial
disfigurement award. The calculation is 40% x $5000, equaling a VSSR payment of
$2000.
iv. Example:
Facial disfigurement award with a DOI on or after 6/30/2006 has a max award of
$10,000. The IC issued a 40% VSSR award. The IW actually received a $3000
facial disfigurement award. The calculation is 40% x $10,000, equaling a VSSR
payment of $4000.
c.
For all other awards (including death
claims):
i.
VSSR% x Maximum SAWW = Award that is the weekly rate.
ii. Example:
IW died in 2013, with a maximum death rate of $837. The IC grants a 40% VSSR
award. Take 40% x $837 = $334.80.
d.
If the IC grants a VSSR award in a
claim where the employer is or was paying salary continuation, the CSS:
i.
Will calculate the VSSR award based on
the SAWW for the period BWC would have paid TT to the IW; and
ii.
May refer to the Salary Continuation policy
for additional information.
1. The CSS will apply the VSSR to:
a.
All previously paid compensation in the
claim, if the claimant is not currently receiving compensation in the claim;
b.
All current compensation payments in
the claim; and
c.
Any compensation the claimant receives
in the claim in the future.
2.
Once BWC receives the IC order granting
the VSSR award, the CSS will delay payment until the expiration of the 30-day
period in which parties may request a rehearing.
a.
If a request for rehearing is received
during this 30-day period, the CSS must continue to hold payment until the IC
order is final.
b.
After the IC order is final, the CSS will:
i.
Select the appropriate VSSR indemnity
type based upon the compensation paid in the claim; and
ii.
Issue the initial VSSR payment.
3.
If the IC order indicates that a
temporary agency or PEO is liable for the VSSR, pursuant to Supreme Court
in State ex rel. Newman v. Indus. Comm. (1997), 77 Ohio St.3d
271, the CSS will follow the steps outlined immediately above, but will issue
two separate payments:
a.
One check for the claim benefits,
billed to the temporary agency or PEO; and
b.
One check for the VSSR award, billed to
the site employer.
4.
For all VSSR awards, the CSS will be
responsible for:
a.
Modifying the first payment date of the
schedule to match the payment dates of any future payments for the compensation
type;
b.
Creating the corresponding VSSR benefit
type any time a new benefit type is awarded in the claim;
c.
Extending compensation and VSSR
payments in the claim as appropriate; and
d.
Other claims management matters,
including wage adjustments to VSSR payments, if ordered.
5.
If the IC also awards a civil penalty:
a.
Claims services staff will notify BWC
Accounts Receivable.
b.
BWC Accounts Receivable will directly
bill the employer and deposit funds in the Occupational Safety Loan Fund.
6.
BWC staff may refer to the VSSR job aid
on COR for additional information regarding the processing of VSSRs
in the claims management system.
1. VSSR Settlements with the Employer Prior to IC Decision on
VSSR Award
a.
When the IC approves a VSSR settlement
between the employer and claimant prior to determination on the merits of an
IC-8/9 application, the settlement will be paid by the employer.
b.
No further action is required of BWC
claims services staff.
2.
VSSR Settlements with BWC After IC
Decision on VSSR Award
a.
BWC only enters into and pays VSSR
settlements with the claimant when the employer is no longer in business.
b.
When the VSSR is settled between the
claimant and BWC, BWC Legal will:
i.
Sign the Settlement of Claimed
Violation of a Specific Safety Requirement (IC-10); and
ii.
Directly notify BWC’s Special Claims
Unit of the VSSR settlement.
c.
The Special Claims Unit will pay the
VSSR settlement upon expiration of the 30-day period if no request for a
rehearing is filed.
d.
If the claim is assigned to a CSS in a
claims service office and a VSSR settlement order between BWC and the claimant
is imaged into the claim, no further action is required of BWC claims services
staff.
3.
In lump sum settlement (LSS) requests
for claims with a VSSR award, staff will refer to the Lump Sum Settlement policy and procedure for direction regarding:
a.
VSSR settlements:
i.
With BWC prior to an IC decision on the
VSSR award;
ii.
With the employer after an IC decision
on the VSSR award; and
iii.
When the employer settles the VSSR, but
goes out of business before the VSSR settlement is paid; and
b.
LSS requests for claims with a VSSR
award.
1. The
IC is not required to declare a VSSR award as overpaid.
2. When a claimant is declared overpaid for compensation on
which a VSSR award was attached, claims services staff will notify the Policy
Processing Department, the Employer Management Supervisor (EMS), and the Injury
Management Supervisor (IMS) so that employer history and claims management
payment plans reflect the overpayment.
3. Claims services staff must include the following in the
notification:
a.
The claim number;
b.
Date of injury;
c.
Amount of credit;
d.
Employer risk number.