Policy Name:	PERCENTAGE OF PERMANENT PARTIAL DISABILITY OR INCREASE OF PERMANENT PARTIAL DISABILITY COMPENSATION
Policy #:	CP-16-04
Code/Rule Reference:	R.C. 4121.32; 4121.34; 4121.63; 4123.57; 4123.511; 4123.68; 4123.84 O.A.C. 4121-3-10; 4123-3-15; 4123-3-18; 4123-10-03 IC Hearing Officer Manual Memo E7, I5
Effective Date:	09/29/2017
Approved:	Kevin R. Abrams, Chief Operating Officer (Signature on file)
Origin:	Claims Policy
Supersedes:	Policy # CP-16-04, effective 09/09/2016
History:	Revised 09/29/2017; New 09/09/2016

 

 

I. POLICY PURPOSE

 

The purpose of this policy is to ensure BWC correctly determines eligibility for percentage of permanent partial (%PP) compensation awards and bases decisions on sufficient and appropriate supporting medical evidence from an exam or a file review.

 

II. APPLICABILITY

 

This policy applies to BWC Field Operations staff.

 

III. DEFINITIONS

 

Accrued Compensation: The unpaid portion of an award of compensation in an allowed claim due to the decedent at the time of his or her death, regardless of whether the death was the result of an allowed injury or occupational disease.

 

Average Weekly Wage: The basis upon which to compute benefit payments for: temporary total disability (TT) and Living Maintenance (LM) after the initial 12-week period of disability; death benefits; permanent total disability benefits (PTD); percent of permanent partial disability benefits (%PP); wage loss (WL) benefits; and may be used for payment of living maintenance wage loss (LMWL) if greater than the full weekly wage (FWW).

 

Daywork Payment:  Claims management system-reference to compensation and benefit payments that cover past periods but do not extend to future scheduled payments.

 

Disability Evaluators’ Panel (DEP):  A panel of physicians contracted by BWC to perform high-quality, impartial Independent Medical Exams (IME) and Physician File Reviews (PFR) that result in concise, timely and justifiable reports.

 

Disabled Workers’ Relief Fund (DWRF): A fund, separate from the state fund, established to provide supplemental benefits to injured workers (IW) who are receiving PTD compensation when the total of the PTD compensation plus the social security disability (SSD) benefit is less than the DWRF eligibility amount. 

 

Percentage of Permanent Partial Award: Also known as a %PP and/or a C-92 award; compensation awarded for residual impairment, either physical or psychological, resulting from an allowed injury or occupational disease (OD) in state fund or self-insured (SI) claims.

 

Residual Effect:  An impairment granted beyond the scheduled loss award as derived from the American Medical Association’s “Guides to the Evaluation of Permanent Impairment, Fifth Edition” (AMA guides), unless otherwise specified.

 

IV. POLICY

A.      Application

1.       Application for %PP shall be made on an Application for Determination of Percentage of Permanent Partial Disability or Increase of Permanent Partial Disability (C-92).

2.       The C-92 application contains three check boxes to address %PP requests. The IW or IW representative will mark the check box that appropriately describes his/her request:

a.       Box one

i.      Request for an initial %PP award; and

ii.     No supporting medical evidence is required.

b.       Box two

i.      Request for a %PP award for a newly allowed condition (condition allowed since the last %PP award); and

ii.     No supporting medical evidence is required.

c.       Box three

i.      Request for an increase from a previously granted award of %PP; and

ii.     Requires medical evidence to be attached that supports an increase over the previously granted %PP.

3.       The IW or IW’s representative may file the C-92 application electronically through www.bwc.ohio.gov; however, BWC will not honor the authorization to receive a workers’ compensation check on the application unless BWC receives the IW’s signature on a:

a.    Copy of the electronic application;

b.    Hardcopy application; or

c.     Completed and signed Authorization to Receive Workers’ Compensation Payment (C-230) form.

4.    The employer, if it chooses to do so, must submit any proof bearing upon the application (e.g., medical documentation) within 14 days of receipt of the C-92 application.

 

B.    General Policy Statements – It is the policy of BWC to:

1.    Consider a previously awarded %PP in one claim when an application for a %PP award is received in another claim for the same body part.

2.    Change a claim to a lost time (LT) claim when a %PP award is granted; however, BWC shall not change a claim to a LT claim based solely on the filing of a C-92 application.

 

C.   Determining Eligibility of a C-92

1.    Waiting periods before an IW can file for an initial %PP:

a.    Claims with dates of injury (DOI) on or after 6/30/06: the application may be filed 26 weeks from:

                                      i.        The day after the last payment of TT or WL compensation;

                                     ii.        The day after the DOI or contraction of an OD in absence of payments; or

                                    iii.        The day after the DOI when the employer paid full salary/wages and no other compensation has been paid.

b.    Claims with DOI prior to 06/30/06: the application may be filed 40 weeks from:

                                      i.        The day after the last payment of TT or WL compensation;

                                     ii.        The day after the DOI or contraction of an OD in the absence of payments; or

                                    iii.        The day after the DOI when the employer paid full salary/wages and no other compensation has been paid.

c.     The 40-week or 26-week waiting period applies to initial applications only.

2.    A C-92 application shall be dismissed when the IW is not eligible for a %PP award for any of the following reasons:

a.    The initial application is filed prior to the end of the waiting period;

b.    Permanent Total Disability has been granted in the claim;

c.     The application is for an increase for %PP and there is no attached medical evidence that shows new and changed circumstances since the time of the original or most recent %PP determination that supports an increase;

d.    The injured worker failed to respond to an attempt to schedule a %PP examination or failed to appear for a scheduled %PP examination without explanation when the application was filed on or after 9/29/2017;

e.    For all applications if:

                                      i.        The statute of limitations for the claim has expired;

                                     ii.        The IW has already received %PP awards of 100% or greater in all claims combined (including SI claims);

                                    iii.        The application is not signed by the IW or IW’s authorized representative and field staff is unable to obtain the signature;

                                   iv.        The application is requesting an award for partial hearing loss or loss of vision; and/or

                                      i.        Payment is prohibited due to the type of OD allowance, specifically:

a)    Firefighters and police officers with cardiovascular, pulmonary or respiratory diseases;

b)    Firefighters with an allowance of cancer due to the presumption in the Firefighters with Cancer Occupational Disease Claims policy;

c)    Allowances for silicosis, asbestosis, or coal miners’ pneumoconiosis; and

d)      Any other OD of the respiratory tract, except berylliosis, resulting from injurious exposure to dust.

 

D.   Considerations Specific to a C-92 Request for an Increase of %PP

1.    A request shall be held for 60 days from the date a copy of the request is mailed to the employer and employer’s representative. The 60-day hold may not be waived. However, if BWC has determined the employer is out of business, the request will not be mailed and BWC may process the request without waiting the 60-day period.

2.    BWC shall request a physician file review (PFR) or independent medical exam (IME) when the IW requests an increase in %PP and submits supporting medical evidence demonstrating new and changed circumstances that have developed since the time of the original or most recent %PP determination.

3.    Except where an additional condition has been allowed in the claim and the request is for an increase in %PP based solely on that additional condition, BWC shall dismiss any request for an increase of %PP when medical documentation is not submitted or is not available to support the request.

4.    BWC shall request an exam if the medical evidence submitted by the IW shows an increase greater than 20%.

 

E.    Medical Evidence Submitted by Parties to the Claim

1.    Medical evidence for an initial %PP request or a %PP request for a newly allowed condition is not required.

2.    When a BWC scheduled impairment exam is complete, BWC shall refer an initial C-92 application to the IC without issuing a decision if any party submits conflicting medical evidence (e.g., employer’s defense exam or IW’s impairment exam) prior to BWC’s determination of the application.

3.    A medical report that has been rejected can never be submitted as evidence again.

a.    A report is rejected if the report was on file at the time a decision was made and its conclusion is contrary to the finding of a hearing officer;

b.    Example: IW filed for Permanent Total Disability (PTD) based on a report finding 66 %PP and indicating the IW is PTD.  The report was rejected when the SHO denied PTD.  A C-92 increase was filed after the PTD hearing relying on the same physician’s report. That report can no longer be used as evidence.

 

F.    Exams, File Reviews, and Addendums Specific to %PP Requests

1.    It is the policy of BWC to ensure examining physicians consider previous impairment awards for the same part(s) of body in any of the IW’s claims.

2.    Exams

a.    The employer may schedule an exam at any time during the C-92 process at the employer’s expense.

b.    The purpose of the C-92 examination is to provide an opinion on the whole person percentage of impairment (WPI) for an allowance for the IW based on the 5th edition AMA Guides unless otherwise specified.

c.     The IW shall be scheduled for an examination when requesting an initial determination of %PP.

d.    The IW shall be scheduled for an examination when:

                                      i.        Requesting a %PP award for a newly allowed condition for a new body part;

                                     ii.        The IW has highly complex injuries;

                                    iii.        A psychological exam is necessary for an initial psychological allowance;

                                   iv.        The IW is requesting an increase of 20% or greater; or

                                     v.        The DEP file reviewer recommends an examination.

e.    BWC may schedule an exam based on the age of the claim and/or impairment percentages previously allowed.

f.      A “Percent Permanent Partial Notice of Application” letter will be sent to the IW (copy to the IW representative) upon receipt of a C-92 application:

                                      i.        The letter explains the purpose of the exam;

                                     ii.        The letter requests IW availability for scheduling the exam;

                                    iii.        If the letter is returned due to an incorrect address, BWC shall attempt to obtain the correct address.

g.    BWC shall consider and request an examination on all conditions allowed at the time the physician notice letter is sent unless instructed otherwise by the IW/IW Rep.

h.    BWC shall schedule and pay for %PP examinations, file reviews, addendums and related travel.

                                      i.        Exams for state fund claims are charged to the surplus fund;

                                     ii.        Exams for SI employers are charged to the SI surplus fund.

i.      Residual Effects – BWC may grant a %PP award for residual effects over and above a scheduled loss impairment award if a loss of use/amputation produces a residual impairment. The examining physician may consider the impact of disability factors to the IW. This includes, but is not limited to, the impact of current symptoms and limitations or difficulty caused by the disability to the IW.

 

3.    Failure to Appear

a.    BWC shall follow the failure to appear process in the Independent Medical Exams (IME) and Physician File Reviews (PFR) policy and procedures when an IW fails to appear for a BWC scheduled exam.

b.    BWC shall refer the Motion (C-86) to the Industrial Commission of Ohio (IC) when an employer files a C-86 requesting claim suspension due to an IW’s failure to appear for an employer-scheduled exam.

4.    Addendums

a.    Requests for addendums to a DEP %PP examination report shall be sent to all parties in the claim.

b.    Addendum reports shall be attached to and processed with original %PP examination reports.

c.     Additional information is available in the Independent Medical Exams (IME) and Physician File Reviews (PFR) policy.

 

G.   Suspending the Application

1.    It is the policy of BWC to indefinitely suspend a C-92 application if a lump sum settlement (LSS) application is filed as detailed in the Lump Sum Settlement policy and procedure.

2.    The C-92 application will remain suspended until:

a.    The IW withdraws the C-92 application; or

b.    The LSS is approved and the C-92 application can be dismissed; or

c.     The LSS is denied and field staff moves forward with processing the C-92 application.

 

H.   Tentative Orders for C-92 Applications 

1.    It is the policy of BWC to:

1. Issue a tentative order (TO) to grant, dismiss or suspend a C-92 application, except for initial C-92 applications with conflicting medical evidence, which shall be referred to the IC as provided in Section IV.E.2 above.
2. Accept the recommendation of the BWC medical reviewer and issue a TO if there is a conflict in the medical evidence involving a request for an increase in a %PP.
3. Dismiss the current application and grant the IW the remaining percentage up to 100% in the claim in which the medical evidence is supporting a whole person impairment (WPI) of 90% or more.
4. If the %PP request is granted but earnings information is not available:

                                          i.    Issue a TO indicating that the %PP has been granted but is not payable until earnings information is received.

                                         ii.    Issue an order setting wages when the earnings information is received.

5. If the %PP request is granted and earning information is available but wages have not been set, issue one TO granting the %PP award and concurrently issue a BWC order setting the wages for the award.
6. Hold the TO for a 20-day objection period plus mailing time.
7. Waive the objection period if a written waiver signed by the employer and IW is received.
8. Refer objections to a TO to the Industrial Commission of Ohio (IC).

2.    Parties objecting to the TO may file:

a.    Using the Objection to Tentative Order Determining the Percentage of Permanent Partial Disability Compensation (IC-167-T); or

b.    Electronically utilizing the IC’s online appeal process (ICON) located on the IC website.

3.    If the last decision of the IC was to allow a claim or a condition and that decision is appealed to the court by the employer:

a.    A C-92 requesting a %PP for the conditions under appeal shall be suspended until a decision is issued;

b.    A C-92 requesting a %PP for conditions previously allowed in the claim and not under appeal may be processed without waiting for a decision from the court;

c.     If the decision of the IC to allow a condition is appealed by the employer and the IW subsequently dismisses the complaint with the consent of the employer, the C-92 application can be processed until such time as the complaint is re-filed by the IW and is considered pending by the court.

 

I.      Payment of a %PP Award

1.    BWC shall not issue a payment until the administrative decision that grants the award is final.

2.    For claims with a DOI on or after 01/01/1979, it is the policy of BWC to pay %PP awards at 2/3 of the IW’s AWW, but not to exceed a maximum of 1/3 of the statewide average weekly wage.

3.    An IW is awarded two weeks of %PP for each percent of impairment.

4.    BWC shall pay the IW the number of weeks needed to bring the IW up to the maximum award of 200 weeks if the IW is awarded a %PP of 90% or greater, whether upon initial application or after a request for an increase in %PP.

5.    Payment Dates

a.    The %PP award cannot be made until after the last payment of compensation is paid to the injured worker.  This includes:

                                      i.        TT;

                                     ii.        WL;

                                    iii.        LM; and

                                   iv.        LMWL.

b.    BWC shall pay %PP beginning the day after the DOI in a claim where no other compensation has been paid, and to continue even if another compensation type is subsequently awarded and payment of it overlaps payment of the %PP.

c.     If no compensation has been paid, payment begins from the day after the DOI or date of diagnosis (DOD) for an OD.

d.    If TT with a Salary Continuation deduction plan is the only benefit plan built, the %PP payment begins the day after the DOI.

e.    If TT or WL is paid after salary continuation ends, the %PP payment begins the day after the DOI.

f.      If there are no open periods when TT or WL compensation was not paid, the %PP plan begins after the end date of any TT or WL compensation.  This may result in the payment going into scheduled payments for the future.

6.    Public Works Relief Employees (PWRE) – A %PP award is payable after:

a.    Six (6) months of receiving compensation directly out of the fund from which the employee was receiving relief; or,

b.    After the employer’s funds to compensate the IW have been exhausted.

7.    Family support

a.    %PP Payments issued through daywork are treated like lump sum payments for family support arrearages and are subject to attachment. 

b.    Scheduled payments (pension) are subject to weekly family support deductions.

c.     Refer to the Family Support Orders and Attorney Fees Paid Pursuant to Deductions of Child Support from Lump Sum Payments policy for additional information.

d.    BWC shall not send the “Notice to Attorney of Lump Sum Award” letter if the %PP award is granted, and there is a family support obligation on file but wages have not been previously set until:

                                      i.        Wages have been set;

                                     ii.        All appeal periods have expired; and

                                    iii.        The %PP award is payable.

8.    %PP and Concurrent Payments

a.    LM/LMWL and %PP

                                      i.        The IW cannot receive %PP and LM awards or %PP and LMWL awards concurrently in the same claim.

                                     ii.        If the IW is receiving LM or LMWL, the IW may apply for a %PP award and the request may be processed, but payment shall not be made in the same claim until the LM or LMWL ends unless there are broken periods in the past in which the award can be paid.

                                    iii.        The IW may receive %PP and LM or LMWL concurrently in different claims.

b.    WL and %PP

                                      i.        A %PP award and WL are payable over the same period in the same claim if the %PP award becomes final prior to the WL being awarded.

                                     ii.        %PP and WL may be paid concurrently in different claims.

c.     TT and %PP

                                      i.        TT and %PP can be paid over the same period in the same claim when the %PP was paid first and the injured worker later is awarded TT compensation over the period the %PP is paid.

                                     ii.        TT and %PP can be paid over the same period in different claims as long as the %PP was started prior to TT.

d.    PTD and %PP

                                      i.        %PP applications filed on or prior to the date of filing for PTD will be processed prior to processing the PTD application.

                                     ii.        %PP applications subsequently filed to the PTD application are processed after the determination of the PTD application if PTD benefits are denied.

                                    iii.        %PP shall not be awarded when PTD benefits have previously been awarded in the same claim.

                                   iv.        %PP is payable in a different claim for a condition not allowed in the PTD claim.

                                     v.        If the PTD is awarded for a back period that overlaps with the period in which the %PP was awarded and both awards are for the same injuries/conditions, the %PP is deducted from the PTD to be paid.

e.    Lump Sum Settlement (LSS) and %PP

                                      i.        A LSS application takes precedence over any %PP application.

                                     ii.        A signed LSS Agreement causes all pending %PP applications for claims listed on the LSS Agreement to suspend without an order.

                                    iii.        If the IW was granted and paid a %PP award prior to the settlement, the percentage paid in the settled claim is considered in the total WPI percentage if subsequent C-92 applications are received and granted in the other claims.

f.      Violation of Specific Safety Requirements (VSSR) and %PP – The IW is entitled to concurrent payments of VSSR and %PP.

g.    Scheduled Loss (SL) and %PP

                                      i.        BWC shall not pay a scheduled loss (SL) and a %PP award for the same condition, except for residual impairment beyond the SL.

                                     ii.        It is BWCs policy to deduct any previous %PP award for the same body part loss (but not for residual effects) from the SL award.

                                    iii.        BWC may pay both a %PP award and a SL award concurrently in the same claim or different claims when the conditions/injuries/body parts are different.

                                   iv.        If the SL award produces a residual impairment beyond the SL/loss of use, the injured worker may file a %PP for that additional impairment.

                                     v.        Any subsequent %PP award should not attribute any part of the percentage to that which has been covered by the SL award.

h.    Temporary Partial (TP) and %PP

                                      i.        BWC shall deduct TP payments from %PP awards for any claim with a DOI before 9/28/86 and receiving a TP payment.

                                     ii.        Refer to the Temporary Partial Compensation/Change of Election policy for additional information.

i.      Death and %PP

                                      i.        A spouse, surviving dependent(s), or the estate may apply for the %PP award within one year of the IW’s death if a %PP award was not requested or completed prior to the death of the IW.

                                     ii.        If no BWC %PP examination was ever completed, BWC shall request a PFR:

a)    If the IW had been examined prior to death and if the examining physician designated a whole person impairment for the IW, or

b)    If no exam was performed prior to the IW’s death but there is medical on file dated within one year of the date of death that can be used in a physician file review to establish a percentage, field staff shall request a PFR.

                                    iii.        Except where an additional condition has been allowed in the claim and the request is for an increase in %PP based solely on that additional condition, BWC shall dismiss an application for an increase in %PP if medical evidence is not submitted or available to support the request.

                                   iv.        BWC shall deny a request for an increase in %PP if the medical evidence is not dated after the previous %PP award, the supporting documentation states the medical impairment is lower than previously awarded, supporting medical documentation is not dated within one year of the date of death, and as outlined in section IV.E.3.

                                     v.        If a %PP award is made prior to the death of an IW, the award is payable to the spouse, surviving dependents, or the estate of the IW, regardless of whether the death is related to the injury or not.

                                   vi.        Specific information about payment of accrued compensation can be found in the Accrued Compensation policy.

 

BWC staff may refer to the corresponding procedure for this policy entitled “Percentage of Permanent Partial Disability or Increase of Permanent Partial Disability” for further guidance.