OhioBWC - Basics: (Policy library) - File

 Policy and Procedure Name:

Coverage and Employer/Employee Status

Policy #:

CP-03-08

Code/Rule Reference:

R.C. 2744.03; R.C. 3938.01; R.C. 4123.01; R.C. 4123.021-4123.024; R.C. 4123.025; R.C. 4123.03; R.C. 4123.031-4123.037; R.C. 4123.038; R.C. 4123.039; R.C. 4123.15, R.C. 4123.75; R.C. 4139.01; R.C. 4765.01; R.C. 4925.10; R.C. 5502.34; O.A.C 4123-17-07; O.A.C 4123-17-15

Effective Date:

02/18/2020

Approved:

Ann Shannon, Chief of Claims Policy and Support

Origin:

Claims Policy

Supersedes:

Policy #CP-03-08, effective 09/20/16 and Procedure CP-03-08.PR1 effective 02/22/17

History:

Previous versions of this policy are available upon request.

 


 

Table of Contents

 

I. POLICY PURPOSE

II. APPLICABILITY

III. DEFINITIONS

Apprentice

Apprenticeship Agreement

Bona fide equipment/vehicle lease agreement

Calendar Quarter:

Casual Worker

Church

Construction Contract

Coverage

Elective Coverage

Emergency Management Worker

Employee

Employer

Entry-level Trainee

General Contractor

Household Worker

Independent Contractor

“Leasing Onto” Agreement

Minister

Ohio Organized Militia

Owner-Operator

Peace Officer

Placeholder Policy

Pre-apprentice

Professional Employer Organization (PEO)

Subcontractor

Sub-subcontractor

State Active Duty

Statutory Employer

Temporary Service Agency

Transportation Network Company

Transportation Network Company Driver

IV. POLICY

A.          Injured Worker Coverage

B.          Special Coverage Circumstances

V. PROCEDURE

A.          Standard Claim File Documentation

B.          Initial Review and Investigation

C.         Decision

D.         Independent Contractors

E.          Elective Coverage

F.          Transportation Network Company

G.         Temporary Service Agencies

H.         PEO

I.           Apprenticeship

J.          Casual or Household Worker

K.          Emergency Management Worker

L.          Responders to an Inherently Dangerous Situation

N.         Performing Special Services for the State or a Political Subdivision

O.         Individuals Injured or Killed While Performing a Request or Order of a Duly Authorized Public Official

P.          Injuries Incurred While Participating in a Rehabilitation Plan

Q.         Coverage Exemption for Religious Sects

R.         No Coverage/Non-Complying Employer Claims

 

 


 

I. POLICY PURPOSE

 

The purpose of this policy is to ensure BWC staff appropriately recognizes when an IW is considered an employee for workers’ compensation coverage purposes and other circumstances that determine the nature of the applicable workers’ compensation coverage.

 

II. APPLICABILITY

 

This policy applies to claims services staff and employer services.

 

III. DEFINITIONS

 

Apprentice: An individual at least sixteen (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” shall include a:

·        Pre-apprentice;

·        Entry-level trainee;

·        Journeyperson.

 

Apprenticeship Agreement: A written agreement, registered with the apprenticeship council, providing for not less than two thousand 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 one hundred forty-four 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 he/she is 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 – January 1 through March 31;

2nd quarter - April 1 through June 30;

3rd quarter - July 1 through September 30;

4th Quarter - October 1 through December 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 jobsite 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.

 

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.

 

Coverage: For purposes of this policy, reference to an injured worker’s inclusion in a workers’ compensation policy, whether mandated by law or elective.

 

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.

 

Employee: As defined in R.C. 4123.01(A), the term “employee” includes the following persons that do not meet the definition of independent contractor and are:

·        In the service of the state or political subdivision (e.g., a county, township, school district), including:

o   Regular members of lawfully constituted police and fire departments, whether paid or volunteer;

o   Executive officers of boards of education; and

o   Elected officials.

·        In the service of any person, firm, or private corporation, including any public service corporation, that employs one or more persons regularly in the same business or establishment;

·        Household or casual workers who earn one-hundred sixty-dollars or more in cash in any calendar quarter from a single household or employer; or

·        Performing labor or other services pursuant to a construction contract.

·        Operating a vehicle in the performance of services for or on behalf of a motor carrier transporting property, unless the person is an owner-operator (see owner-operator definition below).

 

Employer: As defined in R.C. 4123.01(B) 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”).

·        A person, firm, professional employer organization, and private corporation, including any public service corporation, that (a) 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, oral or written, or (b) 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 law (Also known as a “Private Employer”).

 

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.

 

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: 1) a principal/property owner, 2) an independent contractor, and 3) 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, and 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.

 

“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.

 

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-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 on the basis of 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 into 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: For purposes of this policy, 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. Previously known as a dummy risk number.

 

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.

 

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 work force at the client-employer’s work site.

 

Subcontractor: An entity who 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 who 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 Service Agency: An entity that as part of its trade or business provides workers to unrelated third-party clients to perform services on a temporary basis and derives revenue or other benefits from providing the workers.

 

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.

 

IV. POLICY

 

A.     Injured Worker Coverage

1.     It is the policy of BWC to consider an injured worker (IW) to be covered for possible 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.     It is the policy of BWC to:

a.     Recognize that the existence of workers’ compensation coverage for an employer does not automatically mean a particular IW is covered; and

b.     Investigate fully all coverage issues in a claim prior to making a determination.

 

B.     Special Coverage Circumstances

1.     When special circumstances exist, BWC will properly apply relevant sections of the Ohio Revised Code when making coverage determinations.

2.     Special circumstances are defined by Ohio Revised Code and outlined throughout the procedure below.

 

V. PROCEDURE

 

A.     Standard Claim File Documentation

1.     BWC staff shall refer to the Standard Claim File Documentation and Altered Documents policy and procedure for claim note requirements; and

2.     Shall follow any other specific instructions for claim notes included in this procedure.

 

B.     Initial Review and Investigation

1.     When a new claim is filed, claims services staff must:

a.     Review the information in the claim file and, if necessary, investigate and gather evidence to determine:

i.       If the alleged employer has an existing policy and whether the policy was active at the time of injury; and

ii.      If the IW is an employee, or if the IW does not meet the definition of employee, whether the IW has elective coverage.

b.     Investigate whether any special provisions of the Ohio Revised Code exist that may impact the IW’s coverage or right to participate in the Ohio workers’ compensation system.

i.       Types of coverage that may have special provisions are detailed in sections V.D-V.R of this procedure, and include:

a)     Independent contractors;

b)     Elective coverage;

c)     Transportation network companies;

d)     Temporary service agencies;

e)     Professional Employer Organizations (PEO);

f)       Apprenticeships;

g)     Casual or household workers;

h)     Emergency management workers;

i)       Responders to inherently dangerous situations;

j)       Ohio organized militia;

k)     Individuals performing special services for the state or a political subdivision;

l)       Individuals killed while performing requests or orders of a duly organized public official;

m)   Injuries incurred while participating in a vocational rehabilitation plan;

n)     Coverage exemption for religious sects; and

o)     No-coverage/Non-complying employers.

ii.      All claims involving the special provisions of Ohio Revised Code listed above and further discussed in this policy and procedure must be staffed with a BWC attorney.

2.     If claims service staff has difficulty finding an employer policy:

a.     Claims services staff shall complete and enter a referral on the EM referral tracker requesting assistance in locating the employer policy. The referral must include:

i.       The IW’s claim demographic information;

ii.      All available demographic information of the alleged employer; and

iii.     The following verbiage in the reason for referral:

a)     “Based on the initial investigation, it appears that the employer has never had a policy and the IW alleges they were injured at this place of employment.”; or

b)     “Based on the initial investigation, it appears that the employer had a cancelled policy at the time the IW alleges they were injured at this place of employment.”

b.     If, upon completion of the EM investigation, the IW’s employee or employer coverage status is unclear, claims services staff must seek assistance from a BWC attorney.

 

C.    Decision

1.     After completion of the investigation, claims services staff must either allow the claim if it meets all of the criteria outlined above and those outlined in the Jurisdiction (Statute of Limitations, Statutory Life of a Claim) and Compensable Injuries policies and procedures; or

2.     Disallow the claim based on coverage issues if:

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 Ohio Revised Code sections discussed in this policy and procedure.

 

D.    Independent Contractors

1.     If information received in a claim asserts the IW is a subcontractor or independent contractor, claims services staff must send the IW and the alleged employer the Independent Contractor/Employee Questionnaire, or obtain answers to the questionnaire during an interview of the IW and the employer, documenting all the answers in the claims management system. Claims services staff must also:

a.     Review documentation of the IW’s wages;

b.     Request from the employer and/or IW any written agreement between the IW and the alleged employer;

c.      Review other claims against the same employer; and

d.     Seek any other information available that may help clarify the IW’s employment status.

2.     If the claim involves the construction industry and the alleged employer claims the IW is a subcontractor or independent contractor, claims services staff must attempt to identify the contractor tier for the project using the job aid, Project Contractor Investigation Sheet, on COR.

3.     If the claim involves the trucking industry and the alleged employer claims the driver is an independent contractor, claims services staff must request:

a.     Motor vehicle crash report, if applicable; and

b.     Any agreements between the driver and alleged employer. These agreements may have titles like “Independent Contractor Agreement”, “Driver Agreement”, “Lease Agreement”, or “Leasing Onto” Agreement;

c.      Settlement sheets or statements for one month prior to the date of injury.

4.     Once all the available documentation is received, claims services staff must staff the issue with a BWC attorney to determine employee status and if a different employer than listed on the FROI is responsible for the claim by operation of law.

5.     Upon completion of the staffing with a BWC attorney, claims services staff will publish an order with one of the following findings:

a.     The IW is an employee of the original alleged employer;

b.     The statutory employer is responsible for the claim.

i.       In this case, claims services staff must use the applicable statutory employer order language found on COR on the Coverage policy page;

ii.      Update the statutory employer’s policy number as the insured employer in the claims management system; and

iii.     Add the original alleged employer as an additional recipient on the order;

c.      The IW is an independent contractor.

i.       Claims services staff must retain the name of the alleged employer in the claim for due process purposes but shall deny the claim.

ii.      The order must indicate that:

a)     There is no proof of an employee/employer relationship; and

b)     The IW is an independent contractor.

 

E.     Elective Coverage

1.     Some categories of workers are not required to have workers’ compensation coverage. Thus, an employer may have coverage for the business, but has elected not to have coverage for an 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 very similar;

d.     The IW is listed as an owner, sole proprietor, partner, principal, or officer on the First Report of an Injury Occupational Disease or Death (FROI);

e.     The IW appears to be a family farmer;

f.       The IW’s social security number and the employer’s Federal Tax ID number are the same;

3.     If it appears the claim may involve 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.

4.     When an employer has elected coverage 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.     From with the open claim, select the Participants section of the left side header;

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.

5.     The employer of record must have coverage on the date of injury for the elective coverage to be valid.

6.     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.

7.     Claims services staff may obtain further guidance and/or evidence regarding elective coverage issues by:

a.     Referring to “Viewing EM Information for IM” on COR and other job aids, as needed;

b.     Contacting the IW and employer to clarify coverage status; or

c.      Staffing with the Employer Services Specialist (ESS) or supervisor.

8.     Before making a final determination of the status of elective coverage, claims services staff must staff the claim with a BWC attorney.

 

F.     Transportation Network Company

1.     If the IW appears to be a transportation network company driver (for example, 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 him or herself.

2.     Claims services staff must review these claims with a:

a.     Supervisor;

b.     Employer Management (EM) staff; and/or

c.      BWC attorney.

 

G.    Temporary Service Agencies

1.     When a claim involves an IW who is employed by a temporary agency but is performing services for a third-party client, claims services staff must identify the temporary agency as responsible for coverage in the claim.

2.     Refer to the Violation of Specific Safety Requirement (VSSR) policy and procedures for exceptions concerning Violations of a Specific Safety Requirement awards following the initial coverage determination.

 

H.    PEO

1.     Claims services staff must identify the PEO as the employer responsible for coverage in a claim involving an employee of the PEO, regardless if the IW/employee is co-employed by a client of the PEO.

2.     When a PEO has been identified as the employer, claims services staff must verify the PEO information by contacting BWC’s PEO 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 Professional Employer Organizations (PEOs) policy for further information.

 

I.       Apprenticeship

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 if there are any questions regarding apprenticeship coverage under a U-80.

 

J.      Casual or Household Worker

1.     Before determining if the IW is a casual or household worker that 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 one hundred sixty dollars ($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.      But for the injury, 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 documentation from electronic money transfer systems showing payment for services transactions (e.g., PayPal, Venmo, Bitcoin)

b.     Tax documents showing how the IW reports the income;

c.      Any written agreement between the IW and the alleged employer.

 

K.     Emergency Management Worker

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 member, 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, function, or act,

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 shall require the IW or other claimant 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 participation of the IW as an emergency management worker in the emergency management activity during, or as a result of which the claim is being made.

 

L.     Responders to an Inherently Dangerous Situation

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 he or she 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.

 

M.    Ohio Organized Militia (Ohio National Guard, Ohio Naval Militia, Ohio Military Reserve)

1.     If it appears 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 his or her order to report to duty or other documentation to establish the 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.

 

N.    Performing Special Services for the State or a Political Subdivision

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 acting in the following capacity, pursuant to R.C. 4123.03:

a.     The IW was performing community service (typically an individual on probation or performing community service in lieu of a criminal conviction);

b.     The IW was incarcerated in a state or local correctional facility participating in an inmate work program;

c.      The IW was working as a non-emergency volunteer; or

d.     The IW 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.

 

O.    Individuals Injured or Killed While Performing a Request or Order of a Duly Authorized Public Official

1.     If an IW is not otherwise covered by elective coverage of a public employer, claims services staff shall find the IW covered pursuant to R.C. 4123.025 when:

a.     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

b.     The request or order was made in a time of emergency.

2.     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.

3.     Claims services staff must ensure any payments made under this provision are charged to the Surplus Fund.

 

P.     Injuries Incurred While Participating in a Rehabilitation Plan

1.     Claims services staff will verify that the alleged injury occurred while participating in an active BWC vocational rehabilitation plan.

2.     Claims services staff shall ensure the correct policy number has been assigned to any claim involving an IW injured while participating in a vocational rehabilitation program.

3.     Claim services staff may contact the Rehab Policy unit as needed.

4.     BWC shall charge all compensation and benefits paid in this type of claim to the Surplus Fund, provided the employer in the source claim pays into the Surplus Fund.

 

Q.    Coverage Exemption for Religious Sects

1.     If an IW and employer indicate to claims services staff 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 finding that the IW is not covered by workers’ compensation.

2.     In general:

a.     BWC may approve an employer and employee exemption from workers’ compensation coverage upon the filing of an Application for Exemption from Ohio Workers’ Coverage and Waiver of Benefits (U-3E);

b.     The employer and the employee must both file the U-3E and obtain approval for the waiver;

c.      An employer may have some employees that are exempt from coverage and some that are not; and

d.     The employer and employee do not have to be members of the same religious sect.

 

R.    No Coverage/Non-Complying Employer Claims

1.     Following a claim investigation pursuant to the Initial Claim Determination policy and procedures, claims services staff must investigate to determine whether:

a.     The correct employer has been identified; and

b.     The correct employer has:

i.       Never had an established policy with BWC; or

ii.      A policy that is so old that BWC no longer has record of the policy number (for occupational disease claims);

iii.     A policy is in “cancelled” status, and the date of injury occurred after the policy was cancelled (see occupational disease exception below).

2.     If claims services staff determines the employer lacks workers’ compensation coverage, claims services staff must obtain a new policy number (known as a “placeholder policy”) by:

a.     Inserting the following information on Request for Placeholder Policy form:

i.       Legal business name or homeowner name;

ii.      Primary physical location of business or homeowner;

iii.     Business/homeowner phone, if available;

iv.    A notation of “Placeholder Policy - claim number #xx-xxxxxx” and the date of injury; and

v.      A brief description of the accident.

b.     Sending the Request for Placeholder Policy to the “BWC PPD Rush” email box using the subject line: “Placeholder Policy Due to Claims”.

3.     The responsibilities regarding obtaining placeholder policy number may be assigned to various claims services staff members within the service office at management discretion.

a.     The Claims Service Specialist (CSS) in the lost time service offices must:

i.       Refer the policy issue to Employer Management (EM) staff for investigation, via an IM to EM referral, to ensure that an employer policy number does not already exist; and

ii.      Request creation of a placeholder policy number if EM staff verifies no policy currently exists for the alleged employer.

b.     Medical Claims Supervisors in Central Claims will complete an employer investigation in the claims management system then, if appropriate, refer the request from their staff directly to Policy Processing to obtain a placeholder policy.

4.     The Policy Processing Department must manually place an installment block on all placeholder policies to prevent installments from billing. This block does not prevent invoices and documents from being sent to the employer.

5.     If claims services staff discover or identify an existing policy number for the employer that appears to be applicable to the claim after obtaining a placeholder policy number, claims services staff must email Policy Underwriting via the “BWC Combine Unit Inquiries” mailbox and request the policy numbers be reviewed and possibly combined. For example:

a.     Claims services staff’s investigation of the correct employer determines the correct employer to be ABC Garage, but ABC Garage has no policy number or coverage. Therefore, a placeholder policy number is requested for the employer.

b.     After the placeholder policy number is obtained, it is discovered that ABC Garage did have a policy number and coverage when the placeholder policy number was requested.

c.      Claims services staff will contact Policy Underwriting via the “BWC Combine Unit Inquiries” mailbox and request the review the two policy numbers assigned to ABC Garage to determine if the two policies should be combined.

6.     If the claim is for an occupational disease and the correct employer policy is in a “cancelled” status, the creation of a placeholder policy is not necessary. Claims Services Staff must update the coverage override drop down to “Cov-active on DOO” in the Insured Participant details tab so the employer policy will reflect a covered status for that claim.