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OhioBWC - Basics: (Policy library) - File

Policy Name:

Living Maintenance Wage Loss

Policy #:

CP-12-02

Code/Rule Reference:

R.C. 4121.67; O.A.C. 4123-18-21; 4125-1-01

Effective Date:

09/08/16

Approved:

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

Origin:

Claims Policy

Supersedes:

Policy #CP-12-02, effective 05/12/14

History:

New 05/12/14

Review date:

09/08/19

 

 

I. POLICY PURPOSE

 

The purpose of this policy is to ensure that BWC properly pays living maintenance wage loss (LMWL) to eligible injured workers (IW).

 

II. APPLICABILITY

 

This policy applies to field staff.

 

III. DEFINITIONS

 

Comparably paying work: Suitable employment in which the IW’s weekly rate of pay is equal to, or greater than, the IW’s average weekly wage (AWW).

 

Weekly wage received while employed: The IW’s present earnings (actual weekly earnings which are generated by gainful employment). It is a rebuttable presumption that earnings from paid leave provided by the employer will be included in present earnings.

 

Successful return to work: When the IW has returned to work within sixty days of closure of the IW’s approved vocational rehabilitation plan, and the employment:

·         Is within the physical and/or psychiatric limitations caused by the impairments resulting from the allowed conditions in the claim in which the IW completed the vocational rehabilitation plan, as documented by the IW’s physician of record, and

·         Is reasonable in comparison with the return to work goals of the vocational rehabilitation plan completed by the IW.

 

Suitable employment: Work which is within the IW’s restrictions, and which may be performed by the IW subject to all physical, psychiatric, mental, and vocational limitations to which the IW was subject on the date of the injury, or on the date of disability in occupational disease claims.

 

Voluntary limitation of income: When an IW chooses to limit his or her income, by choosing to work fewer hours or at wages below reasonable expectations for personal reasons, as opposed to reasons related to the allowed conditions in the claim.

 

IV. POLICY

 

A.    It is the policy of BWC to provide LMWL payments to an IW who:

1.    Has a date of injury on or after August 22, 1986;

2.    Completes an approved vocational rehabilitation plan;

3.    Successfully returns to work within 60 days of closure of the IW’s vocational rehabilitation plan; and

4.    Experiences a wage loss while employed, as a consequence of the physical and/or psychiatric limitations resulting from the allowed conditions of the claim.

 

B.    It is the policy of BWC to require an IW requesting LMWL payments to submit to BWC:

1.    An application on an Authorization for Living Maintenance Wage Loss (RH-18) or equivalent; and

2.    Medical documentation of the IW’s physical and/or psychiatric limitations resulting from the allowed conditions of the claim as documented by the IW’s physician of record on a Physician’s Report of Work Ability (MEDCO-14) or equivalent.

 

C.   It is the policy of BWC to send a notification letter to all parties of the claim of the IW’s eligibility or non-eligibility for LMWL, which will include:

1.    Any expectations for job search;

2.    Requirements for submitting documentation to receive ongoing payments;

3.    Any finding that the IW has voluntarily limited his/her income and the resulting calculation of LMWL;

4.    Notice of the limited duration of LMWL; and

5.    Language advising the parties of the right to appeal the decision to the BWC Rehabilitation Eligibility Appeal Unit within fourteen (14) days of the receipt of the letter.

 

D.   BWC Requirements for Documentation and Calculation of LMWL

1.    BWC requires that the IW provide proof of present earnings for the weeks the IW is requesting LMWL. Proof of present earnings includes, but is not limited to:

a.    Pay stubs;

b.    Payroll reports; or

c.    A Report of Earnings for Living Maintenance Wage Loss (RH-94A) or equivalent, signed by the IW.

2.    BWC will calculate the amount of LMWL at sixty-six and two-thirds (66 2/3) percent of the difference between the greater of the IW’s full weekly wage (FWW) or AWW for the claim in which the IW participated in the vocational rehabilitation plan; and the weekly wage (present earnings) the IW is receiving while employed.

3.    Present earnings

a.    Present earnings include:

i.              Gross hourly wages;

ii.             Gross salaries;

iii.            Paid sick leave;

iv.           Holiday pay;

v.            Vacation pay;

vi.           Bonus payments, including stock given as a bonus;

vii.          Commissions on sales;

viii.         Tips;

ix.           Compensatory time;

x.            Overtime pay;

xi.           Shift and holiday differential pay;

xii.          Profit sharing paid to employees as payroll;

xiii.         Per Diem & Travel Allowance – if not paid as a reimbursement of expense;

xiv.         Personal Time; and

xv.          A wage replacement program fully funded by the employer, (i.e., long-term disability).

b.    Present earnings do not include payment of any kind funded in whole or part by the IW.

c.    Self-employed present earnings are the IW’s gross income minus expenses.

d.    The Wages policy may be referenced for further information regarding what is included and excluded from present earnings.

4.    If the IW voluntarily limits his or her income by restricting the number of hours worked, or by working at a wage below reasonable expectations when more appropriate jobs are reasonably available, BWC will calculate the IW’s LMWL at:

a.    Sixty-six and two-thirds (66 2/3) percent of the difference between the greater of the IW’s FWW or AWW for the claim in which the IW participated in the vocational rehabilitation plan; and

b.    The income the IW would have earned if he or she had not voluntarily limited his or her income.

5.    BWC shall pay LMWL at the amount calculated in section D.2. of this policy unless  the calculated amount  exceeds the statewide average weekly wage (SAWW), in which case BWC shall pay LMWL at the SAWW.

6.    The IW must notify BWC prior to changing jobs to determine if the change will result in a voluntary limitation of income.

 

E.    Ongoing Submission Requirements

1.    It is the policy of BWC that the IW submit subsequent applications for LMWL before the specified end-date of the restrictions provided by the IW’s physician of record, or every six months, whichever occurs first.

2.    The IW must submit proof of present earnings:

a.    No less than every four weeks; or

b.    Quarterly, if the IW has a substantial variation in income with a copy of his or her Federal Estimated Tax for Individuals (1040-ES) quarterly payment voucher, if applicable.

3.    It is the policy of BWC to require the IW to make a good faith effort to search for more suitable employment which is comparably paying work if:

a.    The IW is in a job that is below the reasonable expectations of the return to work goals of the vocational rehabilitation plan; or

b.    If the IW can reasonably be expected to obtain different employment, for which earnings are more comparable to those prior to the injury.

 

F.    Payments

1.    BWC will issue LMWL payments following submission of proof of earnings.

2.    Payments may continue for up to a maximum of two hundred (200) weeks. The number of weeks an IW may receive LMWL will be reduced by the number of weeks the IW receives wage loss, pursuant to R.C. 4123.56(B).

3.    LMWL will not be paid when the IW is participating in a gradual return to work program, even if no living maintenance is paid during the gradual return to work.

 

G.   BWC may pay LMWL retroactively if the IW did not receive working wage loss while participating in vocational rehabilitation-related:

1.    Transitional work;

2.    On-the-job training;

3.    Employer incentive; or

4.    Case-management follow-up period.

 

BWC staff may refer to the corresponding procedure for this policy entitled “Procedure for Living Maintenance Wage Loss” for further guidance.


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