OhioBWC - Basics: (Policy library) - File

Orders, Waivers, Appeals and Hearings

Policy and Procedure Name:

Orders, Waivers, Appeals and Hearings

Policy #:

CP-15-01

Code/Rule Reference:

O.R.C 4123.511, 4121.36, 4121.35, 4123.57, 4123.512, 4123.511 and 4123.522

O.A.C 4123-6-16, 4121-3-09, 4123-3-18, 4121-3-30, 4123-3-09, 4123-3-36 and 4123-3-32

Effective Date:

08/28/20

Approved:

Ann M. Shannon, Chief of Claims Policy and Support

Origin:

Claims Policy

Supersedes:

Policy # CP-15-01, effective 11/14/16 and Procedure # CP-15-01.PR1, effective 11/14/16

History:

Previous versions of this policy are available upon request


 

Orders, Waivers, Appeals, Hearings Table of Contents

 

I. POLICY PURPOSE

II. APPLICABILITY

III. DEFINITIONS

Appeal

Hearing

Order

Parties to a Claim

Waiver

IV. POLICY

A.          Requirements

B.          Types of BWC Orders

C.         Waivers

D.         Appeals to BWC Orders

V. PROCEDURE

A.          General Claim Note and Documentation Requirements

B.          BWC Orders

C.         Waivers

D.         Appeals to BWC Orders

E.          Industrial Commission Hearings and Claims with the Attorney General’s Office

F.          Issuing Payment of Comp/Med Benefits After Issuance of an IC or BWC Order

 

 


 

I. POLICY PURPOSE

 

The purpose of this policy is to ensure that BWC publishes and/or executes orders, waivers and appeals in compliance with law and administrative rules.

 

II. APPLICABILITY

 

This policy applies to all BWC staff.

 

III. DEFINITIONS

 

Appeal: A formal request for a change in, or reconsideration of, a decision.

 

Hearing: A meeting wherein the parties to a claim are afforded an opportunity to present evidence and be heard before the Industrial Commission (IC) of Ohio, the statutorily mandated adjudicatory body for workers’ compensation issues.

 

Order: The written notification of a decision made by BWC or the IC from the evidence gathered in a claim.

 

Parties to a Claim: Claimant, claimant representative, employer, employer representative, and BWC.

 

Waiver: A document or formal statement signed by parties to a claim agreeing to immediate implementation of orders issued by BWC and the IC.  The waiver does not affect any past or future orders pertaining to the claim file; only the order currently being waived.

 

IV. POLICY

 

A.     Requirements

1.     It is BWC’s policy to process and publish BWC orders and waivers, process appeals, and perfect IC Orders in accordance with legally mandated timeframes.

2.     A BWC Order is required for all initial and subsequent determinations in claims in which BWC has jurisdiction.

3.     It is BWC’s policy to perfect only signed court orders or IC Court Unit memos.

 

B.     Types of BWC Orders

: Refer to section V.B.3.a-j for specific information about individual order types and their uses.

 

C.    Waivers

1.     When all parties agree in writing to waive their right to appeal an order, it is BWC’s policy to consider the order as immediately effective.

2.     If the employer of record is out of business or in a final cancelled status, it is BWC’s policy that a waiver is not required from the employer of record.

 

D.    Appeals to BWC Orders

1.     Who can appeal: A party to the claim who disagrees with the BWC Order may appeal the decision to the IC, thereby asking that a hearing be held to further evaluate the merits of the claim.

2.     How to Appeal:

a.     Notice of Appeal (IC-12) form;

b.     On a letter that contains all elements of the IC-12;

c.      Online at www.ic.ohio.gov through the Industrial Commission Online Network (I.C.O.N.);

d.     All appeals shall be in writing.

3.     The appeal periods for BWC Orders are:

a.     Tentative Orders - The objection (appeal) period expires twenty (20) days from the printing of the TO;

b.     All other orders - 14 days after the date of receipt of the Order.

4.     Appeal timeline considerations:

a.     Faxes not received by the IC or the BWC during core business hours shall be considered received and filed on the next business day (core business hours are from 8:00 a.m. to 5:00 p.m.);

5.     If evidence is submitted after an appeal is filed and the appeal is not withdrawn, BWC no longer has jurisdiction to reconsider that decision. However, BWC can obtain additional evidence during the hearing process to support its position.

 

V. PROCEDURE

 

A.     General Claim Note and Documentation Requirements

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

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

 

B.     BWC Orders

1.     Creating a BWC order

a.     Claims services staff shall generate the BWC order through the claims management system.

b.     Claims services staff shall display and review the order prior to publishing.

2.     Claims services staff shall include the following in all orders:

a.     The request/issue the order is addressing.

b.     BWC’s decision.

c.      Evidence relied upon to make the decision on the request/issue must be stated in the order including a detailed description of specific factual and/or medical evidence used as the basis for the decision.

i.       Claims services staff shall not paraphrase from a medical report; only exact quotes shall be used.

ii.      Claims services staff shall avoid providing an opinion or comment on the weight, credibility or significance of a medical report unless advised to do so by BWC legal.

d.     The declared amount of the full weekly wage (FWW)/average weekly wage (AWW) following the Wages policy and procedure when:

i.       Wage information is available;

ii.      Compensation has or will be requested;

iii.     A request to set wages has been submitted; and

iv.    Wages haven’t already been set.

e.     The type of compensation to be paid and the period of the award.

f.       Any information included in the sections below on specific orders.

3.     Specific Types of BWC Orders

a.     Initial Allowance Order 

i.       Published when granting the initial allowance of a claim for payment of medical benefits and/or compensation.

a)     For a medical only claim, this order shall address claim allowance and the payment of medical benefits.

b)     For a lost time claim, this order shall address claim allowance, the payment of medical benefits and payment of compensation.

ii.      The following issues may also be addressed:

a)     Setting of the full weekly wage (FWW) and average weekly wage (AWW);

b)     Temporary Total Compensation (TT);

c)     First seven days of lost time;

d)     Non-complying employers (no coverage);

e)     Scheduled Loss Compensation Awards (loss of use, amputation, loss of vision, and loss of hearing);

f)       Salary Continuation.

iii.     Claims services staff shall address all valid conditions alleged on the First Report of Injury (FROI).

a)     Claims services staff shall only allow conditions that are causally related to the injury and have supporting medical documentation. However, medical documentation may not be required for minor injuries as noted in the Medical Evidence for Diagnosis Determinations (MEDD) policy and procedure.

b)     Claims services staff shall deny conditions that are not supported by medical documentation or are not causally related.

c)     Claims services staff shall not deny a condition when some evidence is submitted but it is not conclusive enough to support the condition unless it is the only condition requested.

i)       When the evidence is inconclusive, the order shall include a statement that this condition is neither allowed nor disallowed but shall be considered upon submission of additional proof and a formal request if required.

ii)      When additional supporting documentation is filed within the appeal period, claims services staff shall reconsider conditions that were requested on the FROI but were not previously allowed or denied. If the documentation is submitted after the appeal period has expired, claims services staff shall follow the Additional Allowance policy.

iv.    If compensation is requested after the initial allowance order has been issued but no appeal has been filed and the appeal period has not expired, claims services staff may vacate the initial allowance order and issue a new order addressing compensation.

v.      Claims services staff shall ensure:

a)     A description of the injury is in in the order.

b)     The description includes information received on the FROI and/or during the investigation

c)     The description is spelled correctly and is grammatically correct.

vi.    Claims services staff shall use the “based on” texts in the Initial Allowance Order.

a)     The first “based on” text is for specific information relied upon to make the decision. An example of language to be used in the “based on” text for the decision: "This decision is based on the medical report from Dr. W. Zimmerman, D.O., dated 05/13/19, and the MRI report dated 05/13/19, which states the diagnosis of herniated lumbar disc L4-5 is directly and causally related to the industrial injury of 05/10/19.”

b)     The second “based on” text is the “compensation based on” section and shall be used if wages are being set or if compensation is being ordered. An example of language to be used in the “compensation based on” text: “The information regarding salary continuation was based on the signed C-55 dated 9/10/2019”; or, “wages were set based on the 52 weeks of earnings received from the employer of record and the injured worker’s part time job at City Window Cleaning”; or, “TT compensation was based on the C-84 dated 09/03/2019 from Dr. Jones.”

b.     BWC Initial Auto Adjudication Allowance Order

i.       Published systematically by the claims management system when an initial claim meets a set of criteria that causes the claims management system to automatically generate this allowance order;

ii.      The claim status is systematically updated to “Allow.”

iii.     All parties retain their appeal rights.

c.      BWC Initial Denial Order 

i.       Published when denying an initial allowance of a claim.

ii.      Claims services staff shall include a description of the injury in the BWC Initial Denial Order. The description shall include information received on the FROI and/or during the investigation.

iii.     The most common reasons BWC will deny a claim include:

a)     The employee did not sustain an injury in the course of and arising out of employment;

b)     There is no evidence to support the injury or occupational disease, e.g., claim is alleged for exposure only;

c)     There is no medical relationship between the diagnosed condition and the described injury/occupational disease;

d)     There is no Ohio jurisdiction;

e)     There is not an employee/employer relationship.

iv.    Claims services staff may also deny a claim for any reason found in the Initial Denial Order inserts on COR.

d.     BWC Abate Order – Claims services staff shall use this order to notify the dependent that the claim application has been abated by the death of the claimant.

e.     BWC Subsequent Decision Order 

i.       BWC subsequent decisions are published when granting a request for action after the initial claim determination or when issues are identified after the initial allowance of the claim;

ii.      Is only available for accident and occupational disease claims;

iii.     The following are types of issues that staff may address in a BWC Subsequent Decision Order:

a)     Additional allowance;

b)     Payment of Temporary Total Disability compensation used for new periods of TT for lost time claims or for medical only changeovers when the appeal period for the Initial Allowance Order has expired;

c)     Wage information, including setting AWW for payment of a Percent of Permanent Partial Impairment (C-92) award;

d)     Wage Loss;

e)     Facial Disfigurement;

f)       Change of Occupation;

g)     Proactive allowance of an additional condition;

h)     Permanent Partial (including loss of use, amputation, loss of vision, loss of hearing);

i)       Permanent Total Disability (PTD) rate adjustment;

j)       The amount and reason for the injured worker’s overpayment;

k)     Physician of Record (POR) or treating physician has submitted a statement that the IW has reached maximum medical improvement (MMI) for all allowed conditions;

l)       POR or treating physician has submitted a statement that the IW is released to the former position of employment without restrictions.

iv.    BWC does not have authority to deny a subsequent request except for requests for medical treatment (via Alternative Dispute Resolution Order), lump sum advancement, medication reimbursement, and travel reimbursement (via Miscellaneous Order.)

v.      Claims services staff shall issue a BWC Subsequent Decision Order to address compensation allowances if compensation is requested after an initial order has been issued and the appeal period has expired.

vi.    A BWC Subsequent Decision Order should not be issued while the allowance of the claim is under appeal. However, one possible exception is to issue an order for wages if there’s a hearing order that grants compensation and wages have not been set.

vii.   The print location for this order defaults to central printing, but “Print to S.O.” can be selected. Claims services staff shall only print to the service office if it is necessary to attach additional documentation to the order. 

viii. When setting wages and paying a C-92 award at the same time, claims services staff shall issue two separate orders.

a)     A BWC Subsequent Decision Order is issued to set the wages, and a BWC Tentative Order (TO) is issued to pay the Percentage of Permanent Partial Disability (%PP) award.

b)     Two separate orders are issued because of the difference in the appeal periods. The Tentative Order has a 20-day objection (appeal) period and the Subsequent Decision Order has a 14-day appeal period.

f.       BWC Miscellaneous Order

i.       The following are types of issues that staff shall address in a BWC Miscellaneous Order:

a)     Initial Claim Dismissal;

b)     Participation in vocational rehabilitation (including Living Maintenance);

c)     LMWL; and

d)     Any other issue not covered specifically by any other order.

ii.      Staff shall refer to the individual policy and procedures for specific instructions.

g.     BWC Death Allow Order

i.       Claims services staff shall publish the BWC Death Allow Order to:

a)     Grant death benefits and apportion benefits between dependents, either as the initial decision in the claim or as a subsequent decision on an existing claim; and

b)     Reapportion death benefits between dependents and to award accrued compensation in claims where death benefits have been allowed.

ii.      Staff shall refer to the Death policy and procedures for specific instructions.

h.     BWC Death Deny Order

i.       Claims services staff shall publish the BWC Death Deny Order to communicate BWC’s decision to deny death benefits, either as the initial decision in the claim or as a subsequent decision in an existing claim

ii.      Claims services staff shall refer to the Death policy and procedures for specific instructions.

i.       BWC Alternative Dispute Resolution (ADR) Order 

i.       ADR orders are published to communicate the determination of medical disputes.

ii.      Information needed to generate an ADR order is entered by the MCO on behalf of BWC and the order is printed and mailed by central printing. 

j.       BWC DWRF (Disabled Workers’ Relief Fund) Order

i.       Published to communicate a decision on the IW’s entitlement to DWRF benefits per the PTD and DWRF policy and procedure.

ii.      Types of issues that may be addressed in the BWC DWRF Order are:

a)     Entitlement to DWRF;

b)     Non-entitlement to DWRF;

c)     Social Security Disability Rate;

d)     Permanent Total Disability (PTD) Declared Rate;

e)     Adjustment for increase or decrease in the DWRF Rate;

f)       Overpayment of DWRF Benefits;

g)     Stopping DWRF.

k.       BWC Tentative Order (TO) 

i.       Published to either grant or deny an initial determination or subsequent increase of percentage of permanent partial disability.

ii.      Has a 20-day objection period;

iii.     Claims services staff shall refer to the Percentage of Permanent Partial Awards policy and procedures for specific instructions.

4.     Vacating an Order and Issuing a New Order

a.     Claims services staff may vacate the order and issue a new order when:

i.       New and changed circumstances, corrections to specific conditions and/or body parts, and/or clear clerical errors have occurred after issuance of the order. Common reasons to vacate a BWC order and issue a new order include:

a)     Changes to compensation payments (type, period or rate);

b)     Changes to the original decision (allow/deny);

c)     Changes to specific conditions;

d)     Changing the part of body from right to left or left to right;

e)     Correcting an employer of record;

f)       Correcting a date of injury;

g)     Modifying the diagnosis/condition. The ICD Modification policy shall be followed.

ii.      Requested evidence is received after the determination has been issued via a BWC Order but no appeal has been filed, and that evidence changes the decision;

iii.     Or all parties agree.

b.     Claims services staff may vacate an order and issue a new one within the following time periods:

i.       Within Appeal Period and No Appeal Filed

a)     Claims services staff shall review the evidence received and determine if the evidence supports a change to the BWC Order.

b)     If evidence is submitted within the appeal period, no appeal has been filed, and all parties to the claim agree, claims services staff can vacate the BWC Order and issue a new, corrected BWC order.

c)     In all situations except those involving initial determination, when all parties do not agree to the modification, claims services staff shall refer the claim to the IC.

ii.      Within Appeal Period and Appeal has been Filed

a)     Claims services staff shall review the new evidence to determine if the evidence changes the published decision. At that time, although the IC has jurisdiction, BWC may approach the parties and discuss the parties’ option to withdraw the appeal so that BWC can issue a new order. If the parties agrees, staff may vacate the original order and issue a new order.

i)       The appeal must be withdrawn in writing during the appeal period.

ii)      If the appeal is withdrawn and all parties to the claim agree, claims services staff shall vacate the BWC Order and immediately issue the new, corrected BWC order.

iii)    If the withdrawal is received by BWC and the claim is currently at the IC, BWC shall notify the IC. If the withdrawal is received at the IC, the IC shall notify BWC.

iv)    If the appealing party does not wish to withdraw the appeal, the IC shall process the appeal. Claims services staff shall ensure the new evidence is made available for the IC’s consideration of the appeal.

b)     Claims services staff shall follow the Notice of Referral policy if evidence is submitted after an appeal is filed and the appeal is not withdrawn.

iii.     After Expiration of the Appeal Period and no Appeal was Filed

a)     A new original order may be issued after the expiration of the appeal period with agreement from all parties of the claim.

b)     Example: Claim was originally allowed for shoulder sprain based on the medical documentation submitted by the emergency department. One week after the expiration of the appeal period the orthopedic surgeon submits office notes and an MRI report indicating the IW did not suffer a strain but instead diagnoses the IW with a rotator cuff tear. Claims services staff shall follow the ICD Modification policy and if the parties agree, the original order shall be vacated and a new original order shall be issued.

c)     If claims services staff believes that the original order contains an error, but all parties do not agree to a change, claims services staff shall consult with the local BWC attorney as to whether a motion for continuing jurisdiction is warranted (i.e., a mistake of fact, mistake of law, clerical error or new and changed circumstances).

i)       If a motion for continuing jurisdiction is completed by the BWC attorney, claims services staff will complete the “Notice of Referral” (NOR) referencing the BWC Attorney’s motion.

ii)      The documentation shall be imaged, and the IC will obtain all claim information though a systematic transfer of information prior to the IC hearing.

c.      Creating the New Order After the Order has been Vacated

i.       Claims services staff shall always vacate an order when it is being replaced with a new order. All issues that were addressed in the original order must be repeated in the new order. 

ii.      When vacating an order and issuing a new order, claims services staff shall use the “Vacated” button, which will automatically insert a paragraph stating the original order is being vacated and allows claims services staff to choose the reason the order is being vacated.

iii.     For orders that do not have the “Vacated” button option available, claims services staff shall enter the following statement in the free form text area of the order: “This order replaces the BWC Order dated <enter date> which is now vacated because <<reason order is being vacated>>.”

iv.    The new order shall cite specific changes to the previous order and include in the “based on” text area the new information or evidence that was received which changed the previous decision.

v.      The new BWC Order shall begin a new appeal period.

5.     Time Frames for Publishing a BWC Order

a.     Claims services staff shall publish the BWC Initial Allowance or BWC Initial Denial Order no later than twenty-eight (28) days after claim notification (the date the Initial Notification Letter is sent in the claims management system).

b.     If a medical examination is statutorily required for an initial determination, the time limit for the BWC Order shall be extended. The examination should be promptly scheduled and the BWC Order published no later than twenty-eight (28) days from receipt of the examination report.

c.      An order may be issued once the investigation of the claim is complete and BWC has reached a decision, regardless of employer certification. However, BWC shall continue to actively pursue employer certification during the initial investigation of the claim.

d.     ADR orders are systematically generated within seven (7) days after the MCO’s receipt of the ADR IME report.

e.     Claims services staff shall follow any Claims Services directives regarding time frames for orders.

f.       Prior to completing a task on the claims management system, staff shall review all open orders with overlapping or concurrent appeal periods and ensure they are completing the correct task.

 

C.    Waivers

1.     Who can waive:

a.     IW/Claimant and IW/Claimant representative;

b.     Employer and Employer representative;

c.      BWC attorney can waive an IC notice of hearing or IC order.

2.     The third-party administrator (TPA) or other non-lawyer legally cannot independently waive proper notice of hearing or waive the right to appeal on behalf of any party. They may submit a waiver, but the waiver shall indicate they are doing so at the direction of the employer and not at the independent discretion of the TPA.

3.     How to waive:

a.     Waiver of Appeal Period (C-108);

b.     Letter that contains all elements of the C-108;

c.      Online at www.bwc.ohio.gov/or www.ic.ohio.gov.

4.     How to submit waiver:

a.     Fax;

b.     Scanned and emailed;

c.      Physical delivery of the waiver to BWC or the IC.

5.     To release payment prior to the expiration of an appeal period, parties to the claim must waive in writing. If the award relates to compensation only, no waiver is required from the IW.

6.     The waiver does not affect any past or future orders pertaining to the claim.

7.     Claims services staff shall enter notes summarizing the waivers and shall update the order status in the claims management system.

8.     Claims services staff shall process an appeal and stop any payments during an appeal period even if a waiver was previously received by the appealing party.

 

D.    Appeals to BWC Orders

1.     Claims services staff shall review the appeal for timeliness, incorporating the Mailbox Rule policy, so that BWC can assign the appropriate claim status prior to the appeal being heard by the IC.

2.     If BWC estimates an appeal has been filed within the appeal period:

a.     Claims services staff shall image and index any appeal stamped “Tracked on IR” in application tracking. When the appeal is stamped “Tracked on IR” it has already been processed with the IC and does not need to be forwarded to them.  When the appeal appears on the claims services staff’s work list, a note/task shall be entered indicating the issue, party filing, and date.

b.     The IC shall obtain all claim documents through a systematic transfer of information prior to the IC hearing.

c.      If claims services staff receives evidence which might cause the appealing party to reconsider, (especially issues involving clear clerical error) he/she shall contact the party that filed the appeal to discuss the evidence received and provide an opportunity for the party to withdraw the appeal. The party can withdraw the appeal, in writing, during the appeal period.  If the withdrawal is received by BWC, the withdrawal shall be imaged into the claim file and a NOR must be completed. If the withdrawal is received at the IC, the IC shall notify BWC. The IC should send BWC a copy of the ex parte order officially recognizing the withdrawal of the appeal or a notice that the hearing on the issue has been cancelled.

d.     If the claim was certified and compensation was being paid at the time of the appeal, claims services staff shall place the claim in Hearing status and stop compensation until a District Hearing Officer (DHO) decision is issued.

3.     If BWC estimates an appeal has been filed after expiration of the appeal period:

a.     Claims services staff shall ensure the appeal is imaged into the claim.

b.     Shall complete a NOR if the appeal has not been stamped as “Tracked on IR”.

c.      Claims services staff shall keep the claim in the status as determined by the Initial Determination Order.

d.     Claims services staff shall rename all documents imaged in the claims management system.

 

E.     Industrial Commission Hearings and Claims with the Attorney General’s Office

1.     If claims services staff believes there is an error in an IC order that needs to be corrected:

a.     Claims services staff shall staff clerical errors on IC orders with the supervisor.

b.     If the supervisor determines the error may need to be corrected, the supervisor may discuss the issue with the local BWC attorney.

c.      If further discussion or clarification is needed the local BWC attorney or the supervisor may contact the IC Regional Manager.

d.     BWC shall file the Request for Corrected Order (IC-13) if the BWC attorney determines a corrected order is necessary.

2.     If a subsequent request is filed with BWC when a claim is at the Attorney General’s office on appeal, claims services staff shall refer to the chart Processing Subsequent Requests for Attorney General Appeals to determine when a subsequent request for action can be processed.

3.     Claims services staff shall implement a court order only upon the receipt of the signed IC Court Unit memo.

4.     Emergency Hearings

a.     For information about emergency hearings or to request an emergency hearing, claims services staff shall notify the IW to contact the IC.

b.     Claims services staff may notify injured workers experiencing financial emergencies that the IW may be eligible for certain federal and state benefits in addition to workers’ compensation.

c.      Claims services staff may suggest that the IW contact his or her attorney or the county Ohio Department of Jobs and Family Services (ODJFS) for information regarding financial assistance that may also be available.

d.     Claims services staff shall notify BWC of any emergency hearing so that BWC Law may determine if BWC hearing representation is necessary.

F.     Issuing Payment of Comp/Med Benefits After Issuance of an IC or BWC Order

1.     Claims services staff shall pay all compensation except Percent of Permanent Partial Impairment beginning the earlier of the following:

a.     The expiration of the appeal period if no appeal to an order has been filed, following the Mailbox Rule policy;

b.     The date when the employer has waived the right to appeal a decision;

c.      Upon issuance of the Initial Allowance Order if the claim is certified by the employer or an employer waiver is received; or,

d.     The date the DHO, Staff Hearing Officer (SHO), or IC Order is received by the employer.

2.     Claims services staff shall pay Percent of Permanent Partial Impairment when the order granting the award becomes final or upon receipt of the SHO order.

3.     Payment of medical benefits begins the earlier of the following:

a.     The date the order is issued by an SHO or,

b.     The date of the final administrative or judicial determination. This includes the date the appeal rights are waived by the employer.

4.     If the claim meets the Fast Response criteria as defined in the Initial Determination policy, immediate payment can be made upon issuance of the BWC Order regardless of employer certification.

5.     Claims services staff shall issue an order and hold payment of compensation and benefits until the expiration of the appeal period or a written waiver from the employer is received if the undetermined claim is not certified by the employer. A waiver from the injured worker is not required to pay compensation.

6.     Additional information can be found on the Orders Quick Reference Guide.