Table of Contents
I. POLICY PURPOSE
II. APPLICABILITY
III. DEFINITIONS
Alternate Employer Organization (AEO)
Apprentice
Apprenticeship Agreement
Bona Fide Equipment/Vehicle Lease
Agreement
Calendar Quarter
Casual Worker
Church
Client Employer
Construction Contract
Construction Worker
Contractor Controlled Insurance
Program (CCIP)
Coverage
Digital Network Staffing Platform
Elective Coverage
Emergency Management Worker
Emergency Responder
Employee
Employer
Employer of Record (EOR)
Entry-Level Trainee
Federal Jurisdiction
General Contractor
Household Worker
Independent Contractor
“Leasing Onto” Agreement
Minister
Ohio Organized Militia
Owner Controlled Insurance Program
(OCIP)
Owner-Operator
Peace Officer
Placeholder Policy
Pre-Apprentice
Private Sector Worker
Professional Employer Organization
(PEO)
Public Sector Worker
Rehabilitation Injury
Source Claim
Subcontractor
Sub-Subcontractor
State Active Duty
Statutory Employer
Temporary Labor Services (Temp or
Staffing) Agency
Transportation Network Company
Transportation Network Company Driver
Unrelated Third-Party Client
IV. POLICY
A. IW Coverage for Ohio
Workers’ Compensation Benefits
B. Special Coverage
Provisions
V. PROCEDURE
A. General Claim Note and
Documentation Requirements
B. Initial Review and
Investigation
C. Coverage Detail that
Impacts Initial Determination
D. Independent
Contractors/Subcontractors
E. CCIP and OCIP
F. Elective Coverage
G. Transportation Network
Company
H. Temporary Labor Services
(Temp or Staffing Agency)
I. PEO and AEO
J. Apprenticeship
K. Casual or Household
Worker
L. Emergency Management
Workers
M. Responders to an
Inherently Dangerous Situation
N. Ohio Organized Militia
(Ohio National Guard, Ohio Naval Militia, Ohio Military Reserve)
O. Performing Special
Services for the State or a Political Subdivision
P. Individuals Injured or
Killed While Performing a Request of Order of a Duly Authorized Public Official
Q. Injuries Incurred While
Participating in a Rehabilitation Plan
R. Coverage Exemptions for
Religious Sects
S. Federal Employees
T. Longshore and Harbor
Workers’ Compensation Claims
U. Federal Black Lung
Benefits Act Claims
V. Railroad Employees
This policy ensures BWC staff appropriately recognize when
an injured worker (IW) is considered an employee for workers’ compensation
coverage purposes and assists staff in appropriately identifying special
circumstances that dictate the nature of workers’ compensation coverage.
This policy applies to Claims Services staff and Employer
Services staff.
Alternate
Employer Organization (AEO): A sole proprietor,
partnership, association, limited liability company, or corporation that enters
into an agreement with one or more client employers for purposes of providing
human resource management services and sharing employer responsibility and liability.
An AEO does not include a temporary service agency.
Apprentice:
An individual at least 16 years of age, who is in a registered
apprenticeship program to learn a skilled occupation pursuant to a registered
apprenticeship agreement. For purposes of this policy, “apprentice” must
include a:
·
Pre-apprentice;
·
Entry-level trainee;
·
Journeyperson.
Apprenticeship
Agreement: A written agreement, registered with the
apprenticeship council, providing not less than 2,000 hours of reasonably
continuous employment, and for participation in an approved schedule of work
experience through employment, which must be supplemented by a minimum of 144 hours
per year of related and supplemental instructions.
Bona
Fide Equipment/Vehicle Lease Agreement:
An arrangement between the owner of a truck and a driver, where the driver
is given legal control of the vehicle to use as if they are the owner in
exchange for a payment to the owner for such use. In the transportation
industry, a bona fide lease agreement contains commercially reasonable terms
made with earnest intent, without fraud or deceit.
Calendar
Quarter: One fourth of a calendar year as follows:
1st quarter – Jan.
1 through March 31;
2nd quarter - April
1 through June 30;
3rd quarter - July
1 through Sept. 30;
4th quarter- Oct. 1
through Dec. 31.
Casual
Worker: An individual whose work is occasional
and not on a regular basis. A casual worker can include a member of a labor
crew brought to a job site to labor on completing the task a contractor is
responsible to perform.
Church:
An established and legally recognized congregation, denomination, society,
corporation, fellowship, convention, or association formed primarily or
exclusively for religious purposes.
Client Employer:
A sole proprietor, partnership, association, limited liability company, or
corporation that enters into a PEO agreement and is assigned shared employees
by the PEO.
Construction
Contract: An oral or written agreement
involving any activity in connection with the erection, alteration, repair,
replacement, renovation, installation, or demolition of any building,
structure, highway, or bridge.
Construction Worker:
An individual performing services under a construction contract if at least
10 of the statutory criteria in R.C. 4123.01(A)(1)(c) are met.
Contractor Controlled Insurance
Program (CCIP): A program held by an SI
employer that is also a construction contractor during the construction or
renovation of a property, to cover all workers’ compensation liability arising
from the construction project. This can also be referred to as an SI wrap-around
project.
Coverage: For
purposes of this policy, reference to an IW’s inclusion in a workers’
compensation policy, whether mandated by law or elective.
Digital Network Staffing
Platform: Any online-enabled application,
software, website, or system offered or used by a company that enables the
prearrangement of labor services with an unrelated third-party client.
Elective Coverage:
Workers’ compensation coverage an employer or individual may obtain pursuant
to R.C. 4123.01, for workers that are not defined as employees for
purposes of workers’ compensation. The following are entities or persons not
defined as employees who must elect to purchase workers’ compensation coverage
to be covered:
·
Entity: a sole proprietorship, a partnership, a limited
partnership, an individual incorporated as a corporation with no employees, a
family farm corporation, or an LLC filing a federal tax form as a sole
proprietor or partnership.
·
Person: a sole proprietor, a member of a partnership,
a member of a limited partnership, an individual incorporated as a corporation
with no employees, an officer of a family farm corporation, or an individual
member of a limited liability company (LLC) filing a federal tax form as a sole
proprietor or partnership., a duly ordained, commissioned, or licensed minister,
or assistant or associate minister of a church (or equivalent position and
organization) in the exercise of a ministry.
Emergency
Management Worker: An individual who has
registered for service pursuant to R.C. 5502.34, in connection with the
development, maintenance, and operation of any state or local emergency
management agency authorized by law, and who has met the minimum requirements
of R.C. 4123.031-4123.037, or who has been registered as an emergency
management worker pursuant to R.C. 5502.34 during a disaster or emergency.
Emergency Responder:
An off-duty peace officer, firefighter, or EMT who responds to inherently
dangerous situations as they would if on duty.
Employee: Any
person that is not an independent contractor and is working under any appointment or contract of hire, express or implied, oral
or written. This includes:
·
Public sector workers;
·
Private sector workers;
·
Emergency responders;
·
Construction workers; and
·
Motor carrier drivers.
Employer: As
defined in R.C. 4123.01(B)(1) the term “employer” includes:
·
The state, including state hospitals; each county, municipal
corporation, township, school district; and hospital owned by a political
subdivision or subdivisions other than the state (also known as a “Public
Employer”).
·
Every person, firm, professional employer organization, alternate
employer organization, and private corporation, including any public service
corporation, that:
o
Has in service one or more employees or shared employees
regularly in the same business or in or about the same establishment under any
contract of hire, express or implied, verbal or written; or
o
Is bound by any such contract of hire or by any other written
contract, to pay into the insurance fund the premiums as provided by R.C. Chapter
4123 (also known as a “Private Employer”).
·
All such employers are subject to R.C. Chapter 4123.
Employer of Record (EOR):
Entity legally responsible for purposes of workers’ compensation as the
employer for a claim filed by an IW.
Entry-Level
Trainee: An individual who possesses experience
that qualifies the individual as a journeyperson but for the existence of
certain other disqualifying conditions, and who receives on-the-job training
accompanied by classroom instruction outside of normal working hours.
Federal
Jurisdiction: Federal jurisdiction applies to
workers who are not covered by the Ohio Workers’ Compensation Act, such as
federal employees, maritime injuries, civilian employees working outside the
United States on military bases (Defense Base Act claims), and railroad
employees.
General
Contractor: An entity with whom a principal/property
owner directly contracts to perform certain jobs. Some or all of the enumerated
tasks are subsequently contracted to other entities (subcontractors) for
performance. For general contractor relationships to exist there must be three
parties:
·
A principal/property owner;
·
An independent contractor; and
·
A subcontractor hired by the independent contractor (making the
independent contractor a general contractor).
Household
Worker: A worker hired to perform services in the
home (e.g., housekeeper, nanny, gardener).
Independent Contractor:
An entity with whom the principal/owner directly contracts to perform a
certain task or tasks. Independent contractors are generally engaged to perform
operations not within the usual trade or business of the principal/owner and
such tasks are contract specific. The test for determining valid independent
contractor status is performed through application of the Ohio common law
factors, except for persons who perform labor or provide services pursuant to a
construction contract under R.C. 4123.01(A)(1)(c), and persons who operate a
vehicle or vessel in the performance of services for or on behalf of a motor
carrier transporting property under R.C. 4123.01(A)(1)(d).
“Leasing Onto” Agreement:
An arrangement between an owner-operator of a vehicle and a motor carrier
whereby the owner-operator drives their own vehicle under the motor carrier’s
USDOT operating authority.
Minister: A
duly ordained, commissioned, accredited, or licensed minister, member of the
clergy, rabbi, priest, or Christian Science practitioner. This definition
includes assistant ministers and associate ministers.
Motor Carrier Driver: An individual operating a
vehicle for a motor carrier, unless classified as an owner-operator.
Ohio
Organized Militia: Members of one of the
following:
·
The Ohio National Guard, which includes both the Ohio Air
National Guard and the Ohio Army National Guard;
·
The Ohio Naval Militia;
·
The Ohio Military Reserve.
Owner
Controlled Insurance Program (OCIP): A program
held by an SI employer, public school district, county school financing
district, education service center, community school, state institution of
higher education, or municipal power agency during the construction or
renovation of a property, to cover all workers’ compensation liability arising
from the construction project. This can also be referred to as an SI wrap-around
project.
Owner-Operator: A
person who owns and may operate a vehicle that is used
to transport property. In the event the owner-operator is operating a
vehicle in the performance of services for or on behalf of a motor carrier
transporting property, they are considered an independent contractor if all of
the following factors apply:
·
The person owns the vehicle, or
leases the vehicle under a bona fide equipment/vehicle lease agreement;
·
The person is responsible for
supplying the necessary personal services to operate the vehicle or vessel used
to provide the service;
·
The compensation paid to the person
is based on factors related to work performed, including on a mileage-based
rate or a percentage of any schedule of rates, and not solely based on the
hours or time expended;
·
The person substantially controls the
means and manner of performing the services, in conformity with regulatory
requirements and specifications of the shipper.
·
The person enters a written contract
with the carrier for whom the person is performing the services that describes
the relationship between the person and the carrier to be that of an
independent contractor and not that of an employee.
·
The person is responsible for
substantially all of the principal operating costs of the vehicle and equipment
used to provide the services, including maintenance, fuel, repairs, supplies,
vehicle insurance, and personal expenses, except that the person may be paid by
the carrier the carrier’s fuel surcharge and incidental costs, including tolls,
permits, and lumper fees.
·
The person is responsible for any
economic loss or economic gain from the arrangement with the carrier.
Peace
Officer: An individual legally vested with law
enforcement rights who generally works for a city, county or state public
employer and can be either “traditional” (e.g., police officer) or
“non-traditional” (e.g., certain park rangers, tax agents or liquor agents).
Placeholder
Policy: An employer policy number that is created
when an alleged employer has never established a policy with BWC, BWC no longer
has a record of the policy number, or the policy is in a “cancelled” status,
and the date of injury occurred after the policy was cancelled.
Pre-Apprentice:
An individual receiving formal classroom training designed to provide basic
education, attitudes, skills, trade knowledge, and motivation necessary to
enter a formal apprenticeship program.
Private
Sector Worker: An individual working for any person,
firm, or corporation that:
·
Employs one or more persons regularly;
·
Pays household or casual workers at
least $160 in a calendar quarter; or
·
Is contractually obligated to pay
premiums into the state insurance fund.
Professional Employer
Organization (PEO): A sole proprietor,
partnership, association, limited liability company, or corporation that enters
into an agreement with one or more employers, known as client-employers, for
the purpose of co-employing all or part of the client-employer’s workforce at
the client-employer’s work site.
Public
Sector Worker: An individual serving the state or its
subdivisions (e.g., counties, cities, townships, school districts), including:
·
Police and firefighters (paid or
volunteer);
·
Executive officers and elected
officials; and
·
Members of boards of education.
Rehabilitation Injury:
A new injury or occupational disease sustained while the IW is
participating in an approved vocational rehabilitation plan.
Source Claim: The original claim in which the IW was
participating in an approved vocational rehabilitation program. For purposes of
this policy, the claim in which the IW sustained an injury while participating
in an approved vocational rehabilitation program.
Subcontractor: An
entity that is hired by a general contractor (or prime contractor, or main
contractor) to perform a specific task as part of the overall project and is
normally paid for services provided to the project by the originating general
contractor.
Sub-Subcontractor: An individual or firm having a contract with a
subcontractor to perform a portion of the work.
State
Active Duty: Status of a member of the Ohio
organized militia who is performing duty by order of a state authority, and
while in this state active-duty status injury and occupational disease benefits
are not provided by the federal government.
Statutory
Employer: An
entity in any industry that is responsible for a claim by operation of law due
to using an uninsured independent contractor or subcontractor, or where ten or
more of R.C. 4123.01(A)(1)(c) employee criteria are applicable when a
person is performing labor or providing services pursuant to a construction
contract.
Temporary
Labor Services (Temp or Staffing) Agency: An entity
that, as part of its trade or business, provides individuals to unrelated
third-party clients to perform services on a temporary basis and derives
revenue or other benefits from providing such individuals. A Temp agency is
not:
·
An AEO as defined in R.C. Chapter
4133; or
·
A PEO as defined in R.C. Chapter
4125.
Transportation
Network Company: A
corporation, partnership, association, limited liability company,
proprietorship, or any other entity operating in this state that uses a digital
network to connect transportation network company riders to transportation
network company drivers who provide transportation network company services.
Transportation
Network Company Driver: An
individual to whom both of the following apply:
·
The individual receives connections
to passengers and potential passengers and related services from a
transportation network company in exchange for the payment of a fee to the
company.
·
The individual uses a personal
vehicle to offer or provide transportation network company services to riders
upon connection through a digital network controlled by a transportation
network company in return for compensation or payment of a fee.
Unrelated
Third-Party Client: Entities unrelated to, or not sharing
common ownership, management, or control with the temporary labor services
agency, and which is provided individuals by the temporary labor services
agency to perform services on a temporary basis. For this policy, “unrelated
third-party client” and “client” have the same meaning.
1. BWC
will consider a worker covered for Ohio Workers’ Compensation benefits when:
a. The
IW meets the definition of employee; or
b. Does
not meet the definition of employee but has elective coverage.
2. The
existence of workers’ compensation coverage for an employer does not
automatically mean a particular IW is covered.
3. BWC
will investigate all coverage issues before making a determination in a claim.
1. Certain
provisions impact the IW’s coverage or right to participate in the Ohio
Workers’ Compensation system. These special provisions are detailed in both the
R.C. and federal law.
2.
The following scenarios have special provisions dictated by R.C.:
a. Independent
Contractor/Subcontractor;
i.
Construction industry;
ii. Trucking
industry;
iii. Statutory
employer.
b. Elective
Coverage;
c. Transportation
Network Company;
d. Temporary
Agency;
e. PEO
and AEO;
f.
Apprenticeship;
g. Casual
or Household Worker;
h. Emergency
Management Worker;
i.
Responder to an Inherently Dangerous Situation;
j.
Ohio Organized Militia;
k. Performing
Special Services for the State or Political Subdivision;
l.
Individuals Injured or Killed While Performing a Request or Order of a
Duly Authorized Public Official;
m. Injuries
Incurred While Participating in an Approved Vocational Rehabilitation Plan;
n. Coverage
Exemption for Religious Sects.
3. The
following scenarios have special provisions dictated by Federal Law:
a. Federal
Employees
i.
Workers’ Compensation for federal employees is governed by the Federal
Employees’ Compensation Act (FECA), and claims are administered by the U.S.
Department of Labor, Office of Workers’ Compensation Programs.
ii. FECA
applies to most civilian federal employees who suffer job-related injuries or
occupational diseases.
b. Longshore
and Harbor Workers’ Compensation Claims
i.
Maritime injuries and occupational diseases are covered under federal
law, administered by the U.S. Department of Labor, and are not assigned to
state-fund risk accounts.
ii. Land-based
maritime claims are covered by the “Longshore and Harbor Workers’ Compensation
Act.”
a) The
Longshore Act covers employees in traditional maritime occupations such as:
i)
Longshore workers;
ii) Ship-repairers;
iii) Shipbuilders or
shipbreakers; and
iv) Harbor
construction workers.
b) The
injuries must occur on the navigable waters of the United States or in the
adjoining areas, including piers, docks, terminals, wharves, and those areas
used in loading and unloading vessels.
c) Sea-based
maritime claims are covered under other maritime laws, including the “Jones
Act,” see also the “Merchant Marine Act of 1920.”
c. Federal
Black Lung Benefits Act Claims
i.
Federal Black Lung claims are covered by the “Federal Coal Mine Health
and Safety Act,” and are administered by the U.S. Department of Labor.
ii. The
Black Lung Benefits program provides compensation for coal miners suffering
from a totally disabling respiratory or pulmonary impairment.
iii. BWC has the authority
to assign occupational disease claims caused by coal dust exposure to
state-fund risk accounts for claims filed under Ohio law. Claims are only
assigned to coal workers’ pneumoconiosis fund risk accounts when BWC receives a
“Notice of Claim” from the U.S. Department of Labor, Office of Workers’
Compensation Programs.
d. Railroad
Employees
i.
The Federal Employers’ Liability Act (FELA) imposes liability on
interstate railroads for negligence resulting in the injury or death of their
employees.
ii. This
law provides an exclusive source of recovery for railroad employees injured or
killed while working in interstate commerce.
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. When
a new claim is filed, Claims Services staff must review the information in the
claim file and, if necessary, investigate and gather evidence to determine if:
a. The alleged
employer listed in the claims management system or First Report of Injury,
Occupational Disease, or Death (FROI) is the correct employer;
b. The
alleged employer has an existing policy and whether the policy was active at
the time of injury; and
c. The
IW is an employee, or if the IW does not meet the definition of employee,
whether the IW has elective coverage.
2. Investigate
whether any special provisions exist that may impact the IW’s coverage or right
to participate in the Ohio workers’ compensation system.
a. These
special provisions are detailed throughout this procedure.
b. Claims
Services staff must staff all claims involving special provisions detailed in
this policy and procedure with BWC’s Legal Division.
1. After
completion of the coverage investigation, Claims Services staff must determine
if the claim meets all of the criteria outlined above and those outlined in the
Jurisdiction (Statute of Limitations, Statutory Life of a
Claim), Compensable Injuries, and Initial
Claim Determination policies and procedures.
2. Reasons
a claim would be disallowed for coverage issues include, but are not limited to:
a. The
IW is not an employee;
b. The
IW is not otherwise covered by an elective coverage policy; and
c. The
IW is not entitled to coverage under any of the specific R.C. sections
discussed in this policy and procedure.
1. General
investigation
a. One
of the basic elements of the independent contractor relationship is whether the
IW is operating their own independent business or occupation. If that factor is
not met, other factors will generally not support an IW’s status as an
independent contractor.
b. If
evidence in a claim suggests that the IW is an independent contractor or
subcontractor, Claims Services staff must complete a thorough investigation to
determine the appropriate employee/employer relationship status.
c. If
an allegation has been made that the IW is an independent contractor, Claims
Services staff must obtain the answers to the questions on the Independent
Contractor Questionnaire found on COR.
i.
Claims Services staff must first attempt to contact the IW and the alleged
employer by phone.
ii. If
contact by phone is unsuccessful, staff will send the questionnaire to the IW
and the alleged employer by mail or email.
iii. Claims Services
staff must image the completed questionnaire to the claim file.
d. Factors
to consider in the investigation to determine if the IW is an independent
contractor or subcontractor are divided into critically useful, generally
useful, possibly useful, and rarely useful.
i.
This categorization is intended only to identify those facts that are
more relevant than others in considering a relationship in context of parties
that may be involved in the work and the working relationship.
ii. Not
all factors are relevant to every claim, but it is important to consider enough
factors to support and clearly explain the rationale behind the determination.
iii. Factors that are
critically useful include:
a) The
type of business;
b) Whether
the IW is engaged in an independent business or occupation; and
c) Whether
the work is part of the regular business of the entity paying the worker.
iv. Factors
that are generally useful include:
a) Skills
required in the particular occupation. A license for an occupation or trade
must be examined with context for the type of work and place of work;
b) Method of
payment, including:
i)
What entity is providing payment;
ii) What
work is being paid for; and
iii) How the payment
is made.
c) Whether
the IW incurs the main expenses related to the service performed under a
contract;
d) Whether
the IW provides the necessary tools to perform the work;
e) Whether
the IW is responsible for satisfactory completion of the work under a contract
and is liable for failure to complete the work. Considerations include whether
the IW is compensated solely for their personal labor;
f) Whether
the IW may earn a profit or suffer a loss under a contract to perform work; and
g) Whether
the IW has continuing or recurring business liabilities or obligations.
v. Factors
that are possibly useful include:
a) Length
of employment;
b) Who
controls the hours worked;
c) Which
party selects the materials, tools, and personnel;
d) Which
party selects the route to the job site; and
e) Terms
of any agreement or contract.
vi. Factors
that are rarely useful include:
a) Receipt
of IRS Form 1099 because both properly classified independent contractors and
misclassified employees may be compensated via this method; and
b) Receipt of
benefits because recipients of an IRS Form 1099 typically do not receive the
benefits an employee would receive, such as paid time off or health insurance.
e. Claims
Services staff must also:
i.
Review documentation of the IW’s wages;
ii. Request
any written agreement between the IW and the alleged employer;
iii. Review other
claims against the same employer; and
iv. Seek any
other information that may help clarify the IW’s employment status.
2. Construction
Industry
a. In
addition to securing the answers regarding independent contractor status as
outlined above, if the claim involves the construction industry and the alleged
employer asserts in the initial contact that the IW is a subcontractor or
independent contractor, Claims Services staff must attempt to:
i.
Identify the contractor tier for the project using the Project
Contractor Investigation Sheet on COR; and
ii. Obtain
the address of the project where the injury occurred.
b. Once
all of the available documentation is received from both parties, Claims
Services staff must staff with BWC’s Legal Division to determine employee
status and if a different employer than listed is responsible for the claim.
3. Trucking
industry
a. In
addition to securing the answers regarding independent contractor status as
outlined above, if the claim involves the trucking industry and the alleged
employer claims the driver is an independent contractor, Claims Services staff
must request:
i.
Motor vehicle crash report, if applicable;
ii. Cab
Card for the truck that includes the name and address of the
registrant/operator, vehicle description, VIN, owner/lessor name and address,
and the USDOT motor carrier responsible for safety;
iii. Any agreement
between the driver and the alleged employer. These agreements may have titles
like “Independent Contractor Agreement”, “Driver Agreement”, “Lease Agreement”,
or “Leasing onto” Agreement; and
iv. Settlement
sheets or statements for one month prior to the date of injury.
b. Once
all of the available documentation is received from all parties, staff with BWC’s
Legal Division to determine employee status and if a different employer than
listed is responsible for the claim.
4. Legal
Staffing and Outcome
a. Upon
completion of their investigation, Claims Services staff must staff all
independent contractor and subcontractor issues with BWC’s Legal Division.
b. Statutory
Employers
i.
A statutory employer may be responsible for the claim if the work is
performed under a construction contract.
ii. If
the result of the Legal staffing is that there is a statutory employer in the
claim, Claims Services staff must update the statutory employer’s policy number
as the insured employer in the claims management system.
c. After
staffing with BWC’s Legal Division, Claims Services staff will publish an order
with one of the following findings:
i.
The IW is an employee of the original alleged employer;
ii. The
IW is an independent contractor. The order against the alleged employer must
indicate that:
a) There
is no proof of an employee/employer relationship; and
b) The IW is
an independent contractor.
iii.
A statutory employer is responsible for the claim.
a) Claims
Services staff must include the following in the order:
i)
The applicable language found in the Statutory Employer – Claim
Allowance Language on COR; and
ii) The
original alleged employer as an additional recipient.
b) If the
decision is appealed, Claims Services staff must request a BWC attorney to attend
the hearing.
d. Based
on the result of the Legal staffing, BWC’s Legal Division may provide
additional order language to Claims Services staff.
1. If
Claims Services staff receives notice that the claim should be under a CCIP or
OCIP project, staff will:
a. Attempt
to confirm the appropriate policy number from the employer or IW; and
b. Send
an email to the SI Inquiries email box
with the:
i.
IW’s name
ii. Employer
of the IW;
iii. Project (CCIP or
OCIP) manager; and
iv. Project
name that the claim allegedly belongs to (if available).
2. The
CSS will receive an email response that verifies if the claim falls under a
specific CCIP or OCIP project.
3. If
the claim falls under a specific CCIP or OCIP project, Claims Services staff
will change the policy number on the claim to the appropriate SI employer.
4. For
example:
The IW works for Mark's Heating
and Cooling. The IW normally services residential heating and cooling equipment
around the city. However, on the date of injury, the IW was installing heating
and cooling equipment at a large Cleveland Clinic construction site, which had
a CCIP or OCIP policy for this IW. During the installation, the IW smashed his
hand. The IW went to the local ER for treatment and filed the claim against
Mark's Heating and Cooling as his EOR, while it should have been filed under
the CCIP or OCIP policy number.
1. Some
categories of workers are not required to have workers’ compensation coverage.
Therefore, an employer may have coverage for the business, but an individual
worker who is not defined as an employee per R.C.
4123.01(A) (e.g., owner) will only be covered if:
a. The
individual elects and pays for coverage themself; or,
b. Their
employer elects to pay for coverage for the individual.
2. Indicators
that an elective coverage situation may exist include:
a. The
IW’s last name is also the name of the business;
b. The
IW’s address is the same as the business address;
c. The
IW’s phone number and the business phone number are the same or similar;
d. The
IW is listed as an owner, sole proprietor, partner, or individual incorporated
as a corporation on the FROI;
e. The
IW is a family farmer;
f.
The IW’s Social Security number and the employer’s Federal Tax ID number
are the same.
3. Pursuant
to R.C.4123.01(A)(2), a
volunteer officer of a nonprofit corporation is specifically excluded from the
definition of employee, and the employer does not have the option to elect
coverage.
4. If
it appears the claim involves an elective coverage situation, Claims Services
staff must research the employer customer record in the claims management
system to see if the IW is listed as having elective coverage when the IW is:
a. The
owner of a sole proprietorship;
b. A
member of a partnership;
c. An
individual in a limited liability company (LLC) acting as a sole proprietorship
or partnership;
d. An
officer of a family farm corporation;
e. An
individual incorporated as a corporation (with no employees);
f.
A duly ordained, commissioned, or licensed minister or assistant or
associate minister of a church (or equivalent position and organization) in the
exercise of a ministry which can be covered electively under the church or
under their own sole proprietor policy.
5. When
coverage has been elected for any individual listed above, Claims Services
staff must not provide workers’ compensation benefits or compensation until
elective coverage is verified for the date of injury. To verify elective
coverage, Claims Services staff must:
a. Select
the Participants section within the claim on the left side header in the claims
management system;
b. Highlight
the insured’s name;
c. Click
the Details tab;
d. Under
Policy Individuals, see if they are checked as covered; and
e. Coverage
Status dropdown verifies whether the employer of record had coverage on the
date of injury.
6. The
EOR must have coverage on the date of injury for the elective coverage to be
valid.
7. Claims Services staff may obtain further guidance and/or
evidence regarding elective coverage issues by:
a. Contacting the IW and employer to clarify coverage status;
or
b. Staffing with the Employer Services Specialist (ESS).
8. Before
making a final determination of the status of elective coverage, Claims
Services staff must staff the claim with BWC’s Legal Division.
9. When an elective coverage person is not covered, Claims
Services staff must:
a. Notify the person of the lack of coverage and dismiss the
claim via Ad Hoc correspondence titled, “Elective Coverage Determination.”
i.
This correspondence informs the person how to
pursue a complaint regarding the lack of insurance in force on the date of
injury.
ii. Claims Services staff must include the following language
in the letter: “The IW is an elective coverage person who did not choose to
participate in the workers’ compensation system by purchasing coverage before
the injury occurred. As a result, this claim is dismissed because coverage was
not in force on the date of injury. To secure coverage in the future, an
application for elective coverage must be submitted. Elective coverage is
effective the date BWC receives the U3-S form and the required premium
installment payment. This decision does not address the merits of
the claim and is not appealable pursuant to R.C. 4123.511. If you have any
questions or disagree with this lack of coverage decision, you may call
614-466-6773 or submit a complaint by email to rtsclass@bwc.ohio.gov. Decisions
on elective coverage complaints are appealable to the BWC Adjudicating Committee
pursuant to R.C. 4123.291 and OAC 4123-14-06 by submitting a LEGAL-15 form
stating the specific grounds for appeal with supporting documentation.”
b. In the event retroactive elective coverage is granted by
the Policy Processing Department, the claim will be processed on the merits.
1. If
the IW appears to be a transportation network company driver (e.g., the
employer is listed as UBER or LYFT), Claims Services staff must determine if:
a. The
transportation network company has an agreement with the transportation network
driver to provide workers’ compensation coverage; or
b. The
transportation network driver has purchased workers’ compensation coverage for
themself.
2. Claims
Services staff must staff these claims with:
a. Their
supervisor;
b. Employer
Management (EM) staff; and
c. BWC’s
Legal Division.
1. Claims
Services staff must identify the temporary agency as the EOR for coverage when
the claim involves an IW who is employed by a temporary agency but is
performing services for a third-party client.
2. If
the temporary agency alleges an IW is an independent contractor but is
performing services at a place of employment, Claims Services staff must:
a. Follow
the independent contractor procedures;
b. Determine
if the site employer has control over the work environment and safety
conditions; and
c. Staff
the claim with BWC’s Legal Division.
3. Refer
to the Violation of Specific Safety Requirement (VSSR) policy and
procedures for exceptions concerning VSSR awards following the initial coverage
determination.
1. If
an employer has entered into an agreement with a PEO or AEO, Claims Services
staff must identify the PEO or AEO as the employer responsible for coverage in
a claim.
2. When
a PEO or AEO has been identified as the employer, Claims Services staff must
verify this information by sending an email to BWC’s PEO/AEO Unit supervisor and
providing:
a. The
claim number;
b. The
date of injury;
c. The
policy number of the employer the claim has been filed under; and
d. Any
information pertaining to the PEO contained in the claim file.
3. Claims
Services staff must note any corrections to the PEO information made by the PEO
Unit.
4. See the BWC Employer Services Alternate
Employer Organizations (AEOs) and Professional Employer Organizations (PEOs) policy for further information.
1.
If it appears the IW may be an
apprentice pursuant to R.C. 4123.038 and 4123.039 (including pre-apprentice, entry-level trainee, or
journeyperson), Claims Services staff must contact the IW and/or the identified
employer and:
a.
Verify the IW’s status as an
apprentice;
b.
Determine if the IW is covered by
an Apprenticeship Elective Coverage Contract (U-80) with BWC; and
c.
Determine if, in addition to being an
apprentice, the IW is an employee of the identified employer.
2.
Claims Services staff must email BWC Policy
Processing and staff with BWC’s Legal Division if there are any questions regarding apprenticeship coverage under
a U-80.
1. Before determining if the IW is a casual or household
worker who qualifies for coverage pursuant to R.C. 4123.01(A)(1)(a)(iii)(b), Claims Services staff must first determine if the IW is an
independent contractor, as described above.
2. If the IW is not an independent contractor, Claims Services
staff must determine if the IW meets the following criteria to be covered as a
casual or household worker:
a. The IW earns $160 or more in any calendar quarter during
the year of injury from a single household or employer.
b. This includes situations where:
i.
At the time of injury, the IW already earned
$160 or more during the calendar quarter; or
ii. Had the injury not occurred, the IW would have earned $160
or more during the calendar quarter.
3. To establish this, Claims Services staff must request
documentation such as:
a. Copies of paychecks or electronic money transfer systems
showing payment for services transactions (e.g., PayPal, Venmo);
b. Tax documents showing how the IW reports the income; and
c. Any written agreement between the IW and the alleged
employer.
4. Claims Services staff must staff decisions regarding casual
or household workers with BWC’s Legal Division.
1. Pursuant to R.C. 4123.031-4123.037, an
emergency management worker, whether paid or volunteer, is eligible for
benefits payable on account of total disability, loss of body part, or death.
Volunteer emergency management workers qualify for the maximum benefits
applicable to accidental injury or death.
2. If the IW is filing a claim as an emergency management
worker, Claims Services staff must verify that the IW:
a. Is registered for service as an emergency worker and has
taken the appropriate state or federal oath;
b. Was acting in good faith in performing his or her emergency
management duty;
c. Was performing such duty in conjunction with the
development, training, maintenance, or operation of the emergency management
agency; and
d. Was under express or constructive instruction or orders of
a duly appointed director or an authorized staff member of the emergency
management agency charged with the authority and responsibility for issuing
such instructions or orders.
3. Prior to receiving any compensation or benefits, Claims
Services staff will require the IW to provide:
a. A copy of the “loyalty oath” filed with the political
subdivision; and
b. A certified copy of the permanent record attesting to the IW’s
participation as an emergency management worker in the emergency management
activity that caused the injury.
4. Claims Services staff must staff decisions regarding emergency
management workers with BWC’s Legal Division.
1.
An IW is covered by workers’
compensation pursuant to R.C. 4123.01(A)(1)(a) when:
a.
The IW is one of the following:
i.
A peace officer;
ii.
A firefighter of a lawfully constituted
fire department;
iii.
A first-responder, emergency medical
technician-basic, emergency medical technician-intermediate, or emergency
medical technician-paramedic of an ambulance service organization or emergency
medical service organization pursuant to R.C. 4765.01;
b.
The situation being responded to is
inherently dangerous;
c.
The situation requires immediate
response on the part of the worker; and
d.
The worker is responding in the same
manner as they would when on-duty.
2.
Claims Services staff must apply this
provision even if the injury occurred outside of the IW’s regular jurisdiction
and regardless of whether the IW works in a paid or volunteer position.
3.
Claims Services staff must staff decisions
regarding inherently dangerous situations with BWC’s Legal Division.
1. If the IW is filing a claim as a member of the Ohio
Organized Militia (the State of Ohio would most likely be listed as the
employer), Claims Services staff must verify that the IW meets the following
criteria to be covered by workers’ compensation pursuant to R.C. 4123.021-4123.024:
a. The IW must have been in a state active-duty status at the
time of injury; and
b. Injury and occupational disease benefits are not otherwise
provided by the federal government.
2. Claims Services staff must request from the IW a copy of
their order to report to duty or other documentation to establish active-duty
status.
3. Claims Services staff must contact the Ohio Adjutant General’s
Department for assistance in determining whether
that IW is eligible to apply for Ohio workers’ compensation benefits or federal
workers’ compensation benefits.
4. Claims Services staff must staff decisions regarding Ohio Organized
Militia claims with BWC’s Legal Division.
1.
Claims Services staff must consult with
EM staff to determine if a public employer has an applicable Contract
for Coverage of State Agency or Political Subdivision (U-69) when a claim is received alleging an injury while
the IW was:
a.
Performing community service (typically
an individual on probation or performing community service in lieu of a
criminal conviction);
b.
Incarcerated in a state or local
correctional facility participating in an inmate work program;
c.
Working as a non-emergency volunteer;
or
d.
Was serving as a juror.
2.
Claims Services staff may refer to BWC
Employer Services Contract for Coverage of State Agency or Political
Subdivision policy for further
information.
3.
Claims Services staff must staff decisions
regarding employees who were injured while performing special services for the state
or a political subdivision with BWC’s Legal Division.
1.
If an IW is not otherwise covered under
elective coverage of a public employer, they may be covered pursuant to R.C.
4123.025:
a.
When the injury or death is a direct
result of performing any act at the request or order of a duly authorized
public official of:
i.
The state, or any institution or agency
of the state; or
ii.
Any political subdivision, including a
county, township, or municipal corporation; and
iii.
The request or order was made in a time
of emergency.
b.
Claims Services staff must staff decisions
regarding individuals injured or killed while performing a request of order of
a duly authorized public official with BWC’s Legal Division.
c.
If the criteria above are met, Claims Services
staff must consider the IW or the IW’s dependents eligible for all workers’
compensation benefits as provided by law.
2.
Death claims must be reassigned to the
Survivor Benefits Team for processing.
3.
Claims Services staff must ensure any
payments made under this provision are charged to the Surplus Fund by sending
an email to the Rate Adjustment box with the request.
1.
Claims for injuries sustained while the
IW was actively participating in an approved vocational rehabilitation plan
(rehabilitation injury claims) are assigned a risk number based on employer
type. If the source claim employer is a:
a.
State Fund Private Employer or a Public
Employer County/City (PEC), the rehabilitation injury claim is assigned one of
two risk numbers (00009999-0 for State-Fund Private Employers or 30099901-0 for
PECs), ensuring that the costs of the claim are charged to the Surplus Fund.
b.
PES agency, the rehabilitation injury
claim is assigned the source claim employer’s risk number, ensuring that the
costs of the claim are charged dollar-for-dollar to the source claim employer.
2.
Refer to the Rehabilitation
Injury Claims policy and procedure for
detailed information about processing these claims.
1.
If an IW and employer indicate that
they hold a religious exemption (e.g. Amish) from workers’ compensation
coverage, Claims Services staff must verify with EM staff that the employer and
the IW both have an approved religious exemption before determining that the IW
is not covered by workers’ compensation.
2.
BWC may approve an employer and
employee exemption from workers’ compensation coverage upon the filing of Application
for Exemption from Ohio Workers’ Coverage and Waiver of Benefits (U-3E).
3.
The employer and the employee must both
file the U-3E and obtain approval for the waiver.
4.
An employer may have some employees who
are exempt from coverage and some who are not.
5.
The employer and employee do not have
to be members of the same religious sect.
6.
Claims Services staff must staff decisions regarding issues of coverage exemptions for religious sects with BWC’s Legal
Division.
1. When
a claim is filed and we discover the claim should be filed as a federal claim
and not with BWC, Claims Services staff must contact the IW to determine if they
wish to dismiss the claim as BWC does not have jurisdiction to process the
claim.
a. If
the IW agrees to dismiss the claim, Claims Services staff will dismiss it using
the “No Insured Found” risk.
b. Because
the employer has appeal rights, if the IW does not agree to dismiss the claim, Claims
Services staff will investigate whether a placeholder policy already exists, or
if one must be created.
2. If Claims
Services staff are unable to reach the IW and the FROI is not signed, Claims
Services staff must dismiss the claim using the “No Insured Found” risk.
3. If Claims
Services staff are unable to reach the IW and the FROI is signed, staff will:
a. Review
the policy issue with the Employer Compliance Unit to determine if a
placeholder policy already exists.
b. If
the placeholder policy:
i.
Exists, Claims Services staff will deny the claim against that risk.
ii. Does
not exist, Claims Services staff will request a placeholder policy to deny the
claim.
1. When
the evidence in the claim suggests that the injury occurred on or adjacent to
navigable waters, Claims Services staff must review the claim with BWC Legal to
determine whether the claim falls under federal jurisdiction.
2. In
the event the claim falls under the jurisdiction of the Longshore Act, BWC’s Legal
Division and/or Special Claims will review in conjunction with the other
states’ coverage unit whether the alleged employer is a subscriber to the
Marine Industry Fund. A maritime employer may also have coverage from another
insurer that provides this type of insurance.
3. The
“Defense Base Act” is an extension of the “Longshore and Harbor Workers’
Compensation Act.” The law provides coverage for civilian employees working
outside the United States on military bases for either public works or national
defense. Claims are administered by the U.S. Department of Labor.
a. These
claims are not assigned to state-fund risk accounts.
b. Claims
Services staff must staff any claims where the injury occurred outside the
territorial boundaries of the United States with BWC’s Legal Division.
4. See
the Longshore
and Harbor Workers' Compensation Claims (aka Marine Industry Fund)
policy and procedure for more information.
1. The
Black Lung Benefits program provides compensation for coal miners suffering
from a totally disabling respiratory or pulmonary impairment. “Federal Coal
Mine Health and Safety Act.” The claims are administered by the U.S. Department
of Labor.
2. BWC
has the authority to assign occupational disease claims caused by coal dust
exposure to state fund risk accounts for claims filed under Ohio law.
a. Claims
are only assigned to Coal Workers’ Pneumoconiosis Fund risk accounts in the
event that BWC receives a “Notice of Claim” from the U.S. Department of Labor,
Office of Workers’ Compensation Programs.
b. BWC
federal black lung claims are administered by the Special Claims Team.
c. Claims
Services staff must staff issues regarding Coal Workers’ Pneumoconiosis Fund
matters with BWC’s Legal Division and/or Special Claims staff.
3. See
the Federal
Black Lung (aka Coal Miner’s Pneumoconiosis) policy and procedure for
more information.
1. The
Federal Employers’ Liability Act (FELA) imposes liability on interstate
railroads for negligence resulting in the injury or death of their employees.
2. This
law provides an exclusive source of recovery for railroad employees injured or
killed while working in interstate commerce.
3. Claims
Services staff must staff issues regarding railroad employees with BWC’s Legal
Division.