OhioBWC - Basics: (Policy library) - File

Living Maintenance Wage Loss Policy and Procedure

Policy and Procedure Name:

Living Maintenance Wage Loss

Policy #:

CP-12-02

Code/Rule Reference:

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

Effective Date:

12/20/18

Approved:

Kevin R. Abrams, Chief Operating Officer

Origin:

Claims Policy

Supersedes:

Policy # CP-12-02, effective 09/08/16

History:

New 05/12/14; Rev. 12/20/18; 09/08/16

 


 

Living Maintenance Wage Loss Table of Contents

 

I. POLICY PURPOSE

II. APPLICABILITY

III. DEFINITIONS

Comparably paying work

Weekly wage received while employed

Successful return to work

Suitable employment

Voluntary limitation of income

IV. POLICY

A.          LMWL Eligibility, Application and Notification

B.          Calculation and Payment of LMWL

C.          Subsequent Periods of LMWL

D.          Good Faith Job Search and Job Changes

E.          LMWL Case Closure

V. PROCEDURE

A.          Standard Claim File Documentation

B.          LMWL Eligibility, Application and Notification

C.          Calculation and Payment of LMWL

D.          Voluntary Limitation of Income

E.          Subsequent Periods of LMWL

F.          Good Faith Job Search and Job Changes

G.         LMWL Case Closure

 

 


 

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 BWC claims services 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). 

 

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 psychiatric limitations caused by the impairments resulting from the allowed conditions in the claim for which the IW completed the vocational rehabilitation plan, as documented by the IW’s physician of record; and

·         Reasonable in comparison with the return to work goals of the comprehensive vocational rehabilitation plan or job retention 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.    LMWL Eligibility, Application and Notification

1.    It is the policy of BWC to provide LMWL compensation to IWs who meet all the following criteria:

a.    Experience a wage loss while employed, due to physical and psychiatric limitations resulting from the allowed conditions of the claim;

b.    Have a date of injury on or after August 22, 1986;

c.     Complete an approved comprehensive vocational rehabilitation plan or job retention plan; and

d.    Successfully return to work within 60 days of closure of the IW’s vocational rehabilitation plan.

2.    It is the policy of BWC to require the IW requesting LMWL compensation to submit to BWC:

a.    A completed Authorization for Living Maintenance Wage Loss (RH-18) application or equivalent; and

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

3.    Upon receipt of an RH-18 application or equivalent, 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.

 

B.    Calculation and Payment of LMWL

1.    Calculation of LMWL

a.    It is the policy of BWC to calculate the amount of LMWL at sixty-six and two-thirds (66 2/3) percent of the difference between:

i.      The greater of the IW’s full weekly wage (FWW) or average weekly wage (AWW) for the claim in which the IW participated in the vocational rehabilitation plan; and

ii.     The weekly wage (present earnings) the IW is receiving while employed.

b.    If the IW voluntarily limits his or her income by restricting the number of hours worked, or by working at a wage below reasonable expectation when more appropriate jobs are reasonably available, it is the policy of BWC to calculate the IW’s LMWL at sixty-six and two-thirds (66 2/3) percent of the difference between:

i.      The greater of the IW’s FWW or AWW for the claim in which the IW participated in the vocational rehabilitation plan; and

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

2.    Payments

a.    It is the policy of BWC to issue LMWL payments following submission of proof of present earnings for the weeks the IW is requesting LMWL, and other supporting documentation, as applicable.

i.      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.

ii.     Present earnings include:

a)    Gross hourly wages;

b)    Gross salaries;

c)    Paid sick leave;

d)    Holiday pay;

e)    Vacation pay;

f)     Bonus payments, including stock given as a bonus;

g)    Commissions on sales;

h)    Tips;

i)      Compensatory time;

j)      Overtime pay;

k)    Shift and holiday differential pay;

l)      Profit sharing paid to employees as payroll;

m)   Per Diem & Travel Allowance – if not paid as a reimbursement of expense;

n)    Personal Time; and

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

iii.    If the IW is self-employed, present earnings mean the IW’s gross income minus expenses.

iv.   Proof of present earnings must be submitted no less than every four weeks (unless the IW is self-employed or otherwise has a substantial variation in income) in the form of an RH-94A, pay stubs, or payroll reports from the IW’s current employer.

v.     If the IW is self-employed or the IW otherwise has a substantial variation in income, the IW may provide proof of earnings on a quarterly basis. The DMC may require a copy of his or her federal Estimated Tax for Individuals (1040-ES) quarterly payment voucher, if applicable.

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

vii.  Staff may reference the Wages policy for further information regarding what is included and excluded from present earnings.

b.    Payments may continue for up to a maximum of 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).

c.     LMWL will not be approved or paid when the IW is participating in a gradual return to work program, even if no living maintenance (LM) is paid during the gradual return to work.

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

i.      Transitional work;

ii.     On-the-job training;

iii.    Employer incentive programs; or

iv.   Periods of case-management follow-up.

e.    BWC will pay LMWL at the amount calculated pursuant to section IV.B.1 of this policy except when the calculated amount exceeds the statewide average weekly wage (SAWW). In these cases, LMWL will be paid at the SAWW.

 

C.   Subsequent Periods of LMWL

1.    It is the policy of BWC to require the IW to submit subsequent RH-18 applications or equivalent, before the specified end-date of the restrictions provided by the IW’s POR, or every six months, whichever occurs first.

2.    Along with the RH-18 application or equivalent, the IW must submit an updated MEDCO-14 or equivalent, as described in section IV.A.2.b of this policy.

 

D.   Good Faith Job Search and Job Changes

1.    It is the policy of BWC to require the IW to make a good faith effort to search for more suitable, comparably paying employment:

a.    When the DMC determines that the IW has accepted employment 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.

2.    It is the policy of BWC to require the IW to notify BWC prior to changing jobs to allow BWC to determine whether the job change will result in a voluntary limitation of the IW’s income.

 

E.    LMWL Case Closure

1.    It is the policy of BWC to close an LMWL case when:

a.    Upon receipt of an RH-18 application or equivalent, the DMC determines that the IW is not eligible to receive LMWL;

b.    A previous authorization for LMWL has expired and no new RH-18 application or equivalent is received; or

c.     200 weeks of wage loss has been paid to the IW.

2.    BWC will communicate in writing the requirements and/or status of the IW’s LMWL case to the IW appropriately depending upon the scenario.

 

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.    LMWL Eligibility, Application and Notification

1.    When an IW’s job goal is not the original job at the original employer, the Disability Management Coordinator (DMC) shall provide to the IW information of possible LMWL eligibility; and

2.    As soon as it is known that the IW has returned to work as part of a vocational rehabilitation plan and will be making less money than the IW made at the job of injury, the DMC shall provide to the IW and the IW’s vocational rehabilitation case manager (VRCM) an Authorization for Living Maintenance Wage Loss (RH-18).

3.    When BWC receives an RH-18 or equivalent application for LMWL, the DMC shall:

a.    Create a LMWL case in the claims management system;

b.    Determine if the IW meets the eligibility and documentation requirements outlined in section IV.A.1 and 2 of this policy;

c.     Send a letter (available on COR) to all parties in response to the RH-18.

i.      All letters shall include:

a)    Indication of the IW’s eligibility or non-eligibility for LMWL; and

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

ii.     If the IW has been found eligible for LMWL, the letter shall also include:

a)    Any expectations for job search;

b)    Ongoing documentation requirements;

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

d)    Notice of the limited duration of LMWL.

d.    Communicate the approval, if applicable, to the Claims Service Specialist (CSS) assigned to the claim, following the directions outlined in the “REHAB LMWL Case” job aid on COR. The CSS shall then be responsible for the payment of LMWL.

 

C.   Calculation and Payment of LMWL

1.    Upon notification of the approval of a period of LMWL and submission of proof of present earnings, the CSS assigned to the claim shall:

a.    Enter the IW’s present weekly earnings into the claims management system to calculate the amount of the LMWL award, which shall be calculated in the manner outlined in section IV.B.1 of this policy;

b.    Pay the authorized period of LMWL as outlined in section IV.B.2 of this policy if the IW submits the required documentation verifying continuing eligibility;

c.     Reduce the number of weeks the IW receives LMWL by the number of weeks the IW received wage loss pursuant to R.C. 4123.56(B) and the Wage Loss Compensation policy; and

2.    Claims services staff may refer to the job aids on COR for assistance in determining how many weeks the IW remains eligible for LMWL.

3.    The CSS shall pay LMWL on the same schedule the IW is submitting proof of earnings (e.g., if the IW submits proof of earnings quarterly, LMWL will be paid quarterly).

4.    The DMC and CSS may approve and pay LMWL retroactively if the IW did not receive working wage loss while participating in vocational rehabilitation-related:

a.    Transitional work;

b.    On-the-job training;

c.     Employer incentive; or

d.    Case management follow-up.

5.    When it is unclear to the CSS whether payment of LMWL to the IW should continue, the CSS may seek assistance in making this determination from the DMC.

 

D.   Voluntary Limitation of Income

1.    If, upon examining the IW’s proof of earnings, the CSS or DMC believe that the IW may be voluntary limiting his or her income, the CSS shall refer the claim to the DMC to make this determination.

2.    Factors the DMC shall use to determine whether the IW is voluntarily limiting his or her income include, but are not limited to, whether the IW:

a.    Is employed at a level below the reasonable expectations of the return to work goals of the vocational rehabilitation plan;

b.    Has failed to accept a good faith offer of suitable employment;

c.     Is working fewer hours than:

i.      The IW worked at his or her former employment;

ii.     The POR has released the IW to work; or

iii.    The IW could be working at the IW’s current employment.

d.    Has quit any suitable employment;

e.    Has made a good faith job search consistent with section V.F.1 and 2 of this procedure.

3.    If the DMC determines the IW voluntarily limited his or her income, the CSS shall calculate the LMWL award amount in the manner outlined in section IV.B.1.b of this policy.

 

 

E.    Subsequent Periods of LMWL

1.    When it appears that LMWL will be ongoing past the current authorized period, the DMC shall send a letter to the IW:

a.    Providing notice to the IW that LMWL authorization will end on the defined date of the current RH-18 on file; and

b.    Requesting that the IW submit a new RH-18 and additional required documentation as outlined in section IV.A.2.b and c of this policy.

c.     The letter shall be sent:

i.      42 days prior to the end of an authorized period of LMWL; and

ii.     Again at 21 days, if the requested evidence has not been received.

2.    Prior to authorizing any subsequent period of LMWL, the DMC shall ensure that the IW has submitted the following:

a.    A new RH-18 application or equivalent. The application must be submitted:

i.      Prior to the end date of the restrictions provided by the IW’s POR; or

ii.     Every six months, whichever occurs first.

b.    A MEDCO-14 or equivalent, as described in section IV.A.2.b of this policy; and

c.     Proof of earnings, as described in section IV.A.2.c of this policy.

3.    Following the expiration of a period of LMWL, if the IW continues to submit proof of present earnings for LMWL, the DMC shall send a letter to the IW:

a.    Explaining that the IW’s LMWL authorization is currently expired; and

b.    Requesting submission of a new RH-18 and any additional required documentation not yet submitted by the IW.

 

F.    Good Faith Job Search and Job Changes

1.    The DMC may require the IW to make a good faith effort to search for more suitable, comparably paying employment as outlined in section IV.D.1 of this policy.

2.    To determine if a good faith job search will be required, the DMC shall consider:

a.    The goals of the vocational rehabilitation plan;

b.    The labor market;

c.     The skills and work history of the IW; and

d.    Any other circumstances and factors relevant to the IW’s ability to find and/or retain a suitable, comparably paying position.

3.    When an IW wishes to change jobs after the initial receipt of LMWL, the DMC shall review:

a.    The details of the prospective job to ensure that the IW is not voluntary limiting his or her income;

b.    Whether the job constitutes suitable employment; and

c.     Whether the job is comparably paying work.

 

G.   LMWL Case Closure

1.    The LMWL case in the claims management system shall be closed when:

a.    Upon submission of an RH-18 application or equivalent, the IW is found not eligible to receive LMWL.

i.      The DMC shall send a letter of non-eligibility, as outlined in section V.B.3.c of this procedure; and

ii.     Close the LMWL case in the claims management system, ensuring that the effective date of the closure is the same as the date on the abovementioned letter.

b.    Authorization for LMWL has expired and no new RH-18 application or equivalent is received.

i.      The DMC is not required to send the IW a letter regarding the expiration of benefits if:

a)    The DMC provided appropriate written notice to the IW, as outlined in section V.E.1 of this procedure; or

b)    If BWC has been notified of a change in the IW’s circumstances (e.g., the IW is currently unemployed or has retired).

ii.     The DMC shall close the case in the claims management system, ensuring that the effective date of the closure is the day after the RH-18 on file expires.

iii.    If the IW continues to submit proof of present earnings for LMWL following the expiration of an authorization period and the DMC sent notice to the IW as outlined in section V.E.1 of this procedure, the DMC may either choose to:

a)    Close the case in the claims management system upon expiration of the RH-18, ensuring that the effective date of the closure is the day after the expiration date of the RH-18 on file; or

b)    Keep the case open for several weeks to allow time for the IW to submit the requested documentation, ensuring that the case is closed if requested documentation is not received.

c.     200 weeks of wage loss compensation has been paid.

i.      The CSS shall send the IW a letter regarding the expiration of LMWL benefits; and

ii.     Close the case in the claims management system, ensuring the effective date of the closure is the same as the date on the abovementioned notice.