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OhioBWC - Basics: (Policy library) - File

Family Support PS

Policy Name:

Family Support Orders and Attorney Fees Paid Pursuant to Deductions of Child Support from Lump Sum Payments

Policy #:

CP-06-03

Code/Rule Reference:

O.R.C. 4123.67; 3121.0311; 3121.034; 3121.037; 3119.01 (C)(7)

OAC 4123-3-10

Effective Date:

11/14/2016

Approved:

Rick Percy, Chief of Operational Policy, Analytics & Compliance (Signature on File)

Origin:

Claims Policy

Supersedes:

Policy # CP-06-03, effective 12/01/2014

History:

New 12/01/2014

 

 

I. POLICY PURPOSE

 

The purpose of this policy is to ensure that BWC appropriately honors family support orders (child support and spousal support) and processes requests for attorney fees in accordance with the law.  

 

II. APPLICABILITY

 

This policy applies to BWC field staff.

 

III. DEFINITIONS

 

Child Support or Family Support Enforcement Agency:  The agency responsible for placing cases into the Support Enforcement Tracking System (SETS), the system operated by the Ohio Department of Job and Family Services, and oversight of those cases; the entity that will assist BWC field staff with obtaining necessary documentation to process court orders.

 

Family Support Orders: Orders from an issuing authority that relate to child support, spousal support or arrearages accumulated for the non-payment of either.

 

Issuing Authority: The court or agency that publishes an order mandating payment of family support. Common examples of issuing authorities are:

·         Administrative Entities – Local agencies that have vested legal authority and the orders are signed by an administrator who has the legal authority to do so (e.g., Administrative Hearing Officer).

·         Domestic Relations Court – County court that issues orders generated as a result of a divorce or dissolution, and the orders are either signed by a judge and/or have a court clerk filing stamp.

·         Juvenile Court – County court that issues orders as a result of parentage or “unruly child” issues, and the orders are signed by a judge and/or have a court clerk filing stamp.

·         Out-of-State – A non-Ohio domestic or juvenile court or legally-sanctioned agency that issues an order that BWC processes directly and without involvement of the Ohio Interstate Central Registry within the Ohio Department of Job and Family Services (ODJFS).

 

Lump Sum Awards: Any type of compensation that results in at least one lump sum payment (i.e., issuance of payment that is equivalent to more than one standard payment of the compensation type), not just lump sum advancements or lump sum settlements.

 

Support Orders: The written notification of a decision made by an administrative or judicial entity regarding child support or family support that is legally binding and may require BWC to take action in a claim.

  • Deduction Order: Order that requires BWC to take deductions from compensation payable to an injured worker (IW), and may include directives for child support, “arrearage only,” or spousal support.
  • Order of Intervention: Order that requests BWC to reimburse an IW’s attorney for legal fees and expenses.
  • Temporary Restraining Order: For purposes of this policy, an order that requires BWC to stop payment of benefits, generally until an order establishing support is issued.  
  • Termination Order: Order that ends the family support obligation, in whole or in part.

 

 

IV. POLICY

A.    It is the policy of BWC to deduct overpayments and attorney fees from an award before calculating the amount of money it will send to the Family Support Enforcement Agency (FSEA).

 

B.    It is the policy of BWC to honor deduction orders for child support, spousal support and arrearages related to child support and spousal support, and deduct monies from workers’ compensation benefits to meet the obligations those orders create, except for benefits paid pursuant to:

1.    Section 916 of the Longshore and Harbor Workers Act

2.    Disabled Workers Relief Fund (DWRF) benefits

3.    Marine Industry Fund

4.    Black Lung

5.    Accrued compensation award issued pursuant to an injured worker’s (IW) death

6.    Violation of a Specific Safety Requirement (VSSR), because it is a penalty and not compensation.

 

C.   If compensation is payable, BWC will comply with a family support order by building the compensation payment plan as soon as possible after determining the order’s effective date, which is:

1.    The date, if specified, in the order; or,

2.    The date BWC receives the order.

 

D.   Self Insured (SI) claims are subject to family support orders and BWC’s claim management system systematically generates the “Notice to FSEA for Self Insured Claim” letter to the court with the SI employer’s name and address and notice that the SI employer pays the IW directl0079.

 

E.    It is the policy of BWC to apply weekly deduction orders to the following types of compensation:

1.    Temporary total compensation (TT);

2.    Living Maintenance (LM);

3.    Wage Loss (WL);

4.    Living Maintenance Wage Loss (LMWL);

5.    Permanent Total Disability (PTD);

6.    Change of Occupation;

7.    Death Benefits;

8.    All payments of the following types of compensation, except the initial payment of:

a.    Percent Permanent Partial (%PP);

b.    Scheduled Loss (SL) to the IW or claimant; and

c.    Temporary Partial (TP). 

 

F.    Deduction Rates for weekly deduction orders

1.    BWC will withhold 55% of a claimant’s  rate for an order, unless:

a.    The order specifically sets another withholding rate.

b.    The claimant has multiple family support orders.

i.      If the total of the multiple orders exceeds 55% of the claimant’s rate, each order is prorated and the percentage of each order is applied to the total deduction allowable.

ii.     The formula is: Each amount ordered by the court divided by the total amount of all orders (all percentages totaled should be 100%).

iii.    Example: IW has weekly withholding rate of $208.86

Susie is ordered to receive $110.16 (divide by 208.86) =53%

Amy is ordered to receive $61.20 (divide by 208.86) =29%

Sara is ordered to receive $37.50 (divide by 208.86) = 18%

 

In this case, based on the claimant’s weekly compensation rate of $300.00, the total allowable deduction is $165.

 

Susie: $165 x 53% = $87.45

Amy:  $165 x 29% = $47.85

Sara:  $165 x 18% = $29.70

2.    Upon receipt of an Amended Deduction Order, it is the policy of BWC to collect the amount stated in the amended order and recalculate the withholding, as needed.

3.    If the claimant’s rate of compensation increases and BWC was unable to pay the full amount of a support order because of the 55% limitation, BWC will recalculate prior deduction amounts and pay up to the ordered deduction amount, if a deduction order is still in effect.       

 

G.   Ending BWC’s Obligation to Deduct Family Support

1.    Termination Order or Arrearage Only letter

a.    Termination orders are the responsibility of the claimant to initiate as not all courts will routinely issue one when the obligation to provide support ends.

b.    Upon receipt of a termination order, BWC will discontinue sending payments for family support, even if past periods of compensation are awarded for a period of time that the now-terminated order was active.

c.    If BWC issues payment of family support after the court issues a termination order for any reason, BWC will not pursue recovery of an overpayment from the FSEA. Rather, it is the responsibility of the claimant to work with the FSEA to recoup monies if the claimant chooses to pursue it.

d.    If BWC receives a termination order after a “Notice to Attorney of Lump Sum Payment” letter is issued, BWC shall hold the lump sum payment for 30 days to allow the attorney to request fees and expenses. See Section G.3., below.

2.    BWC may release funds to the claimant when:

a.    FSEA notifies BWC in writing or via an order that there are no arrearages; or

b.    FSEA fails to respond to BWC within the prescribed timeframe.   

 

H.   Special Considerations

1.    Lump Sum Processing – It is the policy of BWC to subject lump sum awards of $150.00 or greater to lump sum processing for payment of family support. Prior to deducting an amount for family support, BWC shall first recoup monies for any overpayments and deduct attorney fees, if applicable.

a.    BWC may recoup 100% of a lump sum award if the claimant is in arrears and if requested by the court.

b.    BWC shall notify the FSEA and the claimant/claimant’s  representative in writing about lump sum awards of $150.00 or greater that may be subject to deductions for the following type of awards:

i.      Initial payment of accrued %PP;

ii.     Initial payment of accrued SL;

iii.    Lump Sum Settlements (LSS);

iv.   Facial Disfigurements (FD);

v.    Initial payment of accrued TP;

vi.   Lump Sum Advancements (LSA), except advancements ordered to be paid as attorney fees (LSA-AF);

vii.  Increases to the average weekly wage that result in a lump sum amount payable to the IW for awards under B.1.a and b.

2.    Multiple FSEA Orders – It is the policy of BWC to use the “FSEA Apportionment Calculator” to divide a lump sum payment amongst multiple FSEA orders unless BWC receives a court order mandating specific amounts to cases.

3.    Attorney Fees

a.    It is the policy of BWC to notify the attorney of record if BWC is issuing any lump sum payment, as listed in section IV.G.1.b.above, of $150.00 or greater and there is an open order for family support.

b.    The attorney may request attorney fees and expenses from the award:

i.      If there is an active support order; and

ii.     The attorney submits the request for payment on or before 30 days from notification of the lump sum payment and provides supporting documentation that shall include:

a)    The fee agreement signed by the claimant; and

b)    The Affidavit for Attorney Fees (C-255) or equivalent affidavit that contains all the information requested on the C-255.

iii.    The expenses must be itemized expenses related to the compensation that the claimant is receiving and that are allowed for in the fee agreement.

iv.   The fees must be agreed to in the fee agreement, related to the compensation the claimant is receiving, and may be requested in a variety of ways:

a)    The attorney may list the specific dollar amount owed; and/or

b)    The attorney may list the percentage of the award owed. If both the specific dollar amount and percentage are listed, the amounts must be equal or payment will be rejected.

c)    If an affidavit lists only a percentage and no dollar amount, BWC will calculate and pay the appropriate amount.

c.    If the attorney has filed a C-255:

i.      The attorney will be paid before the child support obligation is paid.

ii.     The payment will be sent to the attorney in the attorney’s name.

d.    If the attorney has failed to file a C-255 but has filed an Authorization to Receive Workers’ Compensation Check  (C-230):

i.      Child support will first be deducted from that award and then the C-230 will be honored.

ii.     The payment will be sent in the claimant’s name.

e.    If the attorney has filed a C-255, but has failed to submit documentation within the 30 days as required in section IV.H.3.b., above, then BWC is absolved of its obligation to make payment directly to the attorney and will issue payment to the FSEA.

 

I.      Overpayments

1.    It is the policy of BWC, when collecting overpayments from the claimant for periods of compensation that the claimant was not entitled to receive, to also recoup from the claimant any payment from that overpaid period of compensation paid directly to FSEA.

a.    BWC will collect the payment of family support made during the overpaid period of compensation based on the appropriate percentage for the type of compensation from which the overpayment is recouped.

b.    BWC generally will not pursue an overpayment from an FSEA.

2.    BWC will deduct overpayments from the actual gross award prior to distributing monies to an authorized representative, FSEA or the claimant.

3.    The general order of deductions when there is an overpayment is:

a.    Overpayment

b.    If the remaining balance of the award after the overpayment deduction is less than $150.00:

i.      If there is  a C-230, BWC will honor it; or,

ii.     The claimant is paid the entire remaining balance.

c.    If the remaining balance of the award after the overpayment deduction is equal to or greater than $150.00, the lump sum process applies, as outlined in section IV.H., above.

 

BWC staff may refer to the corresponding procedure for this policy entitled “Family Support Orders and Attorney Fees Paid Pursuant to Deductions of Child Support from Lump Sum Payments” for further guidance.


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