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Policy and Procedure Name:
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Due Process
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Policy #:
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CP-04-06
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Code/Rule Reference:
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The Fifth Amendment to the U.S. Constitution; the Ohio
Constitution, Article I, Section 16.
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Effective Date:
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09/24/21
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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-04-06, effective 08/08/2016
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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
Due Process
Notice
Opportunity to Be Heard
Order
Parties to the Claim
IV. POLICY
A. General Due Process
Information: Advance Notice
B. Newly-Filed
Applications, Requests, and Recommendations
C. Opportunity to Respond
D. BWC Decision
The purpose of this policy is to ensure BWC staff are aware
of the legal principle and expectations of due process in workers’ compensation
claims.
This policy applies to BWC staff and managed care
organization (MCO) staff.
Due Process:
The legal principle that government may not deprive an individual of life,
liberty or protected property rights without providing:
· Notice;
and
· An
opportunity to be heard.
Notice:
A legal concept describing the requirement that government makes a party aware
of a legal process affecting their rights, obligations or duties.
Opportunity
to Be Heard: A legal concept describing the
requirement that government affords a party the chance to present the party’s
views or objections.
Order:
The written decision made by BWC or the Ohio Industrial Commission (IC) or
a court concerning the matter or issue that is being adjudicated.
Parties to
the Claim: For purposes of this policy, the injured worker
and employer. BWC is also a party to the claim if the claim is appealed to the
Industrial Commission.
1. It is the policy
of BWC to ensure that a party is afforded appropriate advance notice when BWC
(or an MCO, on behalf of BWC) is taking action in a claim that affects the
rights, obligations or duties of the party. Advance notice gives parties an
opportunity to:
a. Submit evidence
to be considered when BWC is acting on a request in a claim; and
b. State their
position on the request.
2. The type and
extent of advance notice afforded to a party depends on the impact to the
party’s protected rights and encompasses many actions in the life of a claim
including:
a. Calling or
sending a letter to the parties informing them of the filing of an application
for action in a claim;
b. Creating a Notice
of Referral (NOR) to the Industrial Commission (IC) when disputes arise;
c. Advising
the parties of the opportunity to provide additional information or evidence to
be considered when BWC is taking action in a claim; and
d. Issuing an order
to the parties, advising the parties of the right to appeal.
3. The type of advance
notice BWC provides varies depending on the issue being addressed. These
specifics are addressed in the policies and procedures for each individual
issue or subject matter. The steps detailed in these procedures may not be
expressly identified as “due process” but are provided to achieve the “notice”
and “opportunity to be heard” requirements.
1. It is the policy
of BWC to review newly filed applications, requests, or recommendations upon
receipt to identify and request missing information or relevant evidence.
2. BWC shall provide
notification to the non-filing party or their representative.
a. If the employer
of record is out of business or no longer doing business in Ohio, or the
employer is in a final cancelled status, BWC is not required to and will
generally not provide notification to the non-filing party or their
representative.
b. However, the
employer may make a request for themselves or their authorized representative to
receive continued notice.
3. BWC shall generally
attempt to provide notification by phone, unless otherwise directed in a
subject-specific policy and procedure. Calling allows the opportunity to:
a. Ask follow-up
questions;
b. Obtain
clarification of the issue: and,
c. Reduce
delays in waiting for a response by mail.
4. Fax and email notification
are acceptable for parties that indicate a preference for that type of contact.
5. BWC shall send correspondence
when:
a. Unable to reach
the party by phone or leave a message; or
b. Fax or email
contact is not an available option.
1. It is the policy
of BWC to allow sufficient time for the parties to respond to BWC’s
notification. The response time is determined by BWC’s method of contact.
2. Response Times
a. BWC shall allow:
i. Three
business days to respond if the notification is provided by phone, fax, or
email; or
ii. Seven
calendar days, plus an additional four days per the Mailbox
Rule policy, to respond if the notification letter is sent by mail.
b. If the last day
for response to a notice falls on a weekend, a legal holiday, a day in which
BWC is closed, or a day in which BWC closes before its usual closing time, the
last day for response shall be the next business day.
1. Following the
opportunity for the parties to the claim to respond, BWC shall move forward,
taking one of the following actions:
a. Issuing a BWC
order;
b. Initiating a
NOR; or
c. Sending a
letter.
2. Orders
a. For all initial
and subsequent determinations in claims in which BWC has jurisdiction, BWC shall
issue an order and copy all parties to the claim.
b. All orders shall
contain language informing all parties to the claim of their right to appeal.
c. See the Orders,
Waivers, Appeals and Hearings policy and procedure for additional
information.
3. NORs
a. BWC shall initiate
a NOR to the IC and copy all parties to the claim when:
i. An
issue is disputed by a party to the claim, including BWC; and
ii. An issue
is not within the jurisdiction of BWC.
b. See the Notice
of Referral to the Industrial Commission policy and procedure for
specific directions for completing a NOR.
4. Letters: In
cases where a letter is the appropriate action, it will be addressed in the
subject-specific policy and procedure.