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OhioBWC - Basics: (Policy library) - File

Policy Name:

Permanent Total Disability (PTD) and Disabled Workers’ Relief Fund (DWRF)

Policy #:

CP-16-03

Code/Rule Reference:

R.C. 4123.411 through 4123.417; 4123.58; 4123.62

O.A.C. 4123-3-31; 4123-3-34

Effective Date:

4/20/15

Approved:

Rick Percy, Chief of Operational Policy, Analytics & Compliance

(signature on file)

Origin:

Claims Policy

Supersedes:

All Injury Management policies, directives and memos regarding PTD and DWRF that predate the effective date of this policy.

History:

New 04/20/2015

Review date:

04/20/2020

 

 

I. POLICY PURPOSE

 

The purpose of this policy is to ensure that BWC calculates and pays permanent total disability (PTD) compensation and Disabled Workers’ Relief Fund (DWRF) benefits in compliance with the Ohio Revised Code and the Ohio Administrative Code.

 

II. APPLICABILITY

 

This policy applies to all field staff. 

 

III. DEFINITIONS

 

Disabled Workers’ Relief Fund:  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. 

 

DWRF eligibility amount:  The threshold amount, adjusted annually based on the consumer price index, used to determine an IW’s eligibility for DWRF benefits and established by the BWC DWRF Unit and BWC’s Actuarial Department. 

 

Permanent total disability:  Compensation granted to an IW for the duration of his/her life when the Industrial Commission of Ohio (IC) determines that the IW is unable to perform any sustained remunerative employment or is statutory PTD as defined in R.C. 4123.58.

 

PTD declared rate:  The amount of the weekly PTD compensation payable to an IW prior to reduction for repayment of any lump sum advancement (LSA). 

 

PTD with SSD maximum rate:  For IWs receiving SSD benefits, a rate equal to 2/3 of the statewide average weekly wage (SAWW) for the date of injury, also known as the PTD offset rate.

 

PTD without SSD maximum rate:  For IWs not receiving SSD benefits, a rate equal to the SAWW for the date of injury. 

 

PTD minimum rate: A rate equal to ½ of the SAWW for the date of injury, unless the average weekly wage (AWW) for the claim is less than that amount; in that case, the PTD rate is equal to the AWW. 

 

PTD paid rate:  The weekly PTD benefit BWC pays to an IW; calculated by subtracting the amount being collected to recoup any LSA(s) from the PTD declared rate. 

 

Social security crossmatch:  The electronic receipt of information from the Social Security Administration (SSA) which provides the name, date of birth, date of death (if applicable) and social security benefits received (if any) associated with an SSN, used by BWC to validate information in the claim file and/or to calculate temporary total compensation (TT), permanent total disability (PTD) and/or Disabled Workers’ Relief Fund (DWRF) payment rates.

Social security disability (SSD):  Benefits paid by the SSA to persons who cannot work because they have a medical condition that is expected to last at least one year or result in death.  BWC uses the SSD amount prior to any reduction for Medicare benefits in calculation of PTD and/or DWRF.  SSD is not used in the calculation of TT.

 

Social security retirement (SSR):   Benefits paid by the SSA to persons who have met the eligibility requirements.  SSR benefits may begin as early as a person’s sixty-second birthday.  SSD benefits automatically convert to SSR at the person’s full retirement age.  BWC does not use SSR benefits in the calculation of PTD and/or DWRF, but may use it in the calculation of TT.

 

Split PTD:  PTD compensation allocated by the IC to more than one claim for an injured worker.   The percentage for each claim is used to calculate the amount payable per claim. 

 

Statutory PTD:  PTD compensation payable based on the loss or loss of use of both hands or both arms, or both feet or both legs, or both eyes, or of any two thereof.

 

Total PTD declared rate:  When PTD is split among two or more claims, the total amount when the declared rate for all claims in the split are added together.       

 

Wage Replacement Compensation: Compensation intended to replace an IW’s earnings. This includes temporary total (TT), living maintenance (LM), living maintenance wage loss (LMWL), wage loss (working and non-working) (WL), PTD and salary continuation (SC).

 

Weekly social security disability rate – DWRF (SSD-DWRF):  The SSD amount used for calculation of DWRF benefits.  The rate is determined by the monthly SSD amount for the time period being paid multiplied by 12 and divided by either 365 days, or 366 days in a leap year, and then multiplying the result by seven.  This rate is recalculated whenever there is a change in the SSD rate. 

 

Weekly social security disability rate – PTD (SSD-PTD):  The SSD amount used for the calculation of PTD compensation. For the initial payment of PTD the rate is determined by the monthly SSD amount as of the PTD begin date being multiplied by 12 and divided by 52. This rate is recalculated if the SSD decreases below the rate on the PTD begin date, begins after the PTD begin date, changes from SSD to SSR, or ends for another reason. 

 

Weekly worker’s compensation amount (WWCA):  A component of the PTD declared rate calculation that is calculated as follows:   

1.    If 2/3 of the AWW is greater than or equal to the PTD with SSD maximum rate, the PTD with SSD maximum rate is the WWCA; or,

2.    If the AWW is less than the PTD minimum rate, the AWW is the WWCA; or,

3.    If the AWW is greater than or equal to the PTD minimum rate, but 2/3 of the AWW is less than the PTD minimum rate, the PTD minimum rate is the WWCA; or,

4.    If 2/3 of the AWW is more than the PTD minimum rate, but less than the PTD with SSD maximum rate, 2/3 of the AWW is the WWCA, not to exceed the PTD without SSD maximum rate. 

 

 

IV.  POLICY ON PTD

 

A.    It is the policy of BWC to pay PTD compensation as ordered by the IC.

1.    Payment shall be made:

a.    Upon BWC’s receipt of a staff hearing officer (SHO) order granting PTD  compensation after a hearing; or,

b.    Upon receipt of a waiver to the objection period for a tentative order (TO) granting PTD compensation; or,

c.    At the end of the objection period for a TO granting PTD compensation with no objection having been filed.

2.    BWC shall not pay PTD based on an Agreement as to Award for Permanent Total Disability (IC-22), but shall wait for an order from the IC to make payment.    

3.    BWC shall continue to pay PTD compensation until the death of the IW or until BWC receives an IC order terminating PTD. 

4.    BWC shall continue to pay PTD to IWs who have been found PTD as the result of a traumatic brain injury and who return to work in a sheltered workshop and who earn $2000 or less in any calendar quarter.

5.    It is the policy of BWC to refer the issue of PTD suspension to the IC when the IW is incarcerated.  For additional information, refer to the Incarceration policy.

B.    When an application for PTD is pending with the IC, it is the policy of BWC to:

1.    Process requests for TT compensation (e.g., extending payment, make determination of IW having reached maximum medical improvement);

2.    Process an Application for Determination of Percentage of Permanent Partial Disability or Increase of Permanent Partial Disability (C-92) filed prior to the IC-2 filing date; 

3.    Suspend processing of a C-92 application filed after the IC-2 filing date;

4.    Process requests for the allowance of additional conditions filed prior to the IC-2 filing date;

5.    Suspend requests for the allowance of additional conditions filed after the IC-2 filing date; and,

6.    Process any Settlement Agreement and Application for Approval of Settlement Agreement (C-240), regardless of the filing date.

C.   Statutory PTD

1.    Depending on the date of injury, BWC may refer a claim to the IC for the finding of statutory PTD when BWC or the IC has granted, by final order, the loss or loss of use of both hands, both arms, both feet, both legs, both eyes, or any combination of these.

a.    For claims with dates of injury on or after 08/25/06, the loss or loss of use of a single limb does not constitute the loss of two body parts for purposes of determining statutory PTD.  For example, the loss of the arm does not constitute the loss of the hand and the loss of the arm. 

b.    For claims with dates of injury prior to 8/25/06 the loss or loss of use of a single limb constitutes the loss of two separate entities of the limb.  For example, the loss of the arm constitutes the loss of the hand and the loss of the arm. 

c.    The standard for total loss of vision for statutory PTD is greater than the standard for scheduled loss (State ex rel. Szatkowski v. Indus. Comm).

i.      For example, an IW may receive scheduled loss for 100% loss of vision but have some vision with correction. Vision with correction may negate the IW’s eligibility for statutory PTD.

ii.     BWC staff shall staff with a BWC attorney for questions regarding loss of vision and possible eligibility for statutory PTD.

2.    BWC shall refer requests for statutory PTD filed by the IW to the IC for determination.

3.    IWs who are statutorily PTD may return to work and continue to receive PTD compensation.  It is the policy of BWC:

a.    To not pay any type of wage replacement compensation, except LM as noted in b. below, in a claim where the IW was found to be statutorily PTD; and

b.    For IWs who have been found to be statutorily PTD and who enter into a vocational rehabilitation plan in which LM is to be paid, to suspend payment of PTD while LM is being paid.

4.    IWs who are statutorily PTD may have claims other than the one in which the IW was found to be statutorily PTD.  It is the policy of BWC:

a.    To pay TT or LM, as appropriate, in claims other than the one in which the IW was found to be statutorily PTD; and,

b.    To pay WL or LMWL, as appropriate, in the claims other than the one in which the IW was found to be statutorily PTD so long as the wage loss is caused by conditions other than those which are the basis for statutory PTD. 

D.   PTD Declared Rate

1.    BWC shall calculate the PTD declared rate by combining the SSD-PTD weekly rate with the WWCA.

a.    If the AWW is below the PTD minimum rate, the AWW is the PTD declared rate; or,

b.    If the AWW is above the PTD minimum rate, but 2/3 of the AWW is under the PTD minimum rate, the PTD minimum rate is the PTD declared rate; or,

c.    If 2/3 of the AWW is above the PTD minimum rate, but below PTD with SSD maximum, 2/3 of the AWW is the PTD declared rate; or

d.    If 2/3 of the AWW is above the PTD with SSD maximum rate, SSD benefits must be considered to determine the PTD rate:

i.      If the total of the SSD weekly rate and the WWCA is above the SAWW for the DOI, the PTD declared rate is the PTD with SSD maximum rate for the DOI; or,

ii.     If the total of the SSD weekly rate and the WWCA is below the SAWW but greater than or equal to 2/3 of the SAWW, the PTD declared rate is 2/3 of the AWW, not to exceed the WWCA. 

2.    External customers may access the PTD Rate Calculation Worksheet on bwc.ohio.gov on the “Tools for Representatives” page; BWC staff may access the worksheet on the internal Claims On-line Resource (COR).

3.    No type of retirement benefit will be considered when calculating the PTD declared rate.

4.    BWC does not recalculate the PTD declared rate when SSD increases. BWC only recalculates the PTD declared rate when:

a.    The AWW in the claim changes; or,

b.    The SSD rate decreases to a rate lower than the IW was receiving on the PTD begin date; or,

c.    The IW begins receiving SSD; or,

d.    The IW stops receiving SSD. 

E.    PTD Payments

1.    BWC shall pay PTD less other wage replacement compensation and/or percentage of permanent partial impairment paid over the same period.

2.    The initial accrued payment of PTD may be issued in care of the injured worker’s representative if a properly completed Authorization to Receive Workers’ Compensation Check (C-230) has been submitted prior to the initial payment.  For additional information, refer to the Authorization to Receive Workers’ Compensation Payment policy.

3.    Multiple claims: When the IC orders that PTD is to be paid in more than one claim, BWC shall calculate the PTD rate for each claim individually and then apply the split percentage ordered by the IC to determine the declared rate for each claim. 

4.    PTD payments, both accrued in the past and scheduled biweekly into the future, shall be subject to weekly family support withholding. 

a.    Accrued PTD payments are not subject to lump sum processing for child support. 

b.    Refer to the Family Support policy for additional information

5.    PTD payments shall be subject to collection of overpayments.  Refer to the Adjustment of Compensation policy for additional information.

F.    BWC shall publish the initial PTD declared rate in the original DWRF eligibility order.

G.   BWC shall issue an order when the PTD rate is changed, and shall include the PTD declared rate in subsequent DWRF orders.

H.   Injured workers may receive a LSA from future PTD compensation.  For additional information, refer to the Lump Sum Advancement policy.

V.   POLICY ON DWRF

A.    It is the policy of BWC to:

1.    Determine an IW’s eligibility for DWRF benefits in state-funded and self-insured claims at the time PTD compensation is granted; and,

2.    If DWRF benefits are to be awarded, pay those benefits in both state-funded and self-insured claims; and,

3.    Bill self-insured employers for the DWRF benefits paid in self-insured claims and in state-funded claims where the employer is now self-insured for payments made after the employer became self-insured.

 

B.    To receive DWRF benefits:

1.    An IW must be receiving PTD compensation.

2.    It is not necessary for an IW to file an application. BWC will proactively determine if the IW is eligible to receive the benefits.   

C.   BWC shall request from the SSA information regarding benefits SSA is paying to the IW so that BWC can either include or exclude those benefits from the DWRF benefit calculation.

1.    SSD benefits are included in the calculation of DWRF benefits.

2.    SSR benefits are not included in the calculation of DWRF benefits.

3.    Widow’s benefits or other benefits received by the IW under another person’s social security number are not considered in the calculation of DWRF benefits. 

D.   DWRF Payments

1.    BWC shall calculate DWRF benefits as follows:

a.    Add the total PTD declared rate to the weekly SSD-DWRF rate.

b.    Compare the total of a. above to the DWRF eligibility amount.  If the total is less than the DWRF eligibility amount, the IW is entitled to DWRF benefits. 

c.    If the IW is entitled to DWRF benefits, the DWRF rate is the lesser of the following calculations:

i.      The DWRF eligibility amount minus the total PTD declared rate; or,

ii.     The DWRF eligibility amount minus the weekly SSD-DWRF rate. 

d.    For example:

i.      The DWRF eligibility amount for the current year is $350.

ii.     The IW’s PTD declared rate is $100 per week and SSD-DWRF rate is $150 per week.

iii.    The two rates combined equal $250, which is below the DWRF eligibility amount for the current year, so the IW is eligible for DWRF benefits.

iv.   To calculate the DWRF weekly rate the following comparison is made:

a)    $350 (DWRF eligibility amount) - $100 (PTD declare rate) = $250; and,

b)    $350 (DWRF eligibility amount) - $150 (SSD DWRF rate) = $200.

v.    The DWRF rate is the lesser of the two, or $200.

e.    If PTD is split across multiple claims, the DWRF amount is allocated across claims based on the split PTD percentages.  For example:

i.      The IC has split PTD across three claims, allocating 20% in claim one, 30% in claim two and 50% in claim three; and,

ii.     The DWRF amount for the IW is $200 per week; then

iii.    BWC shall pay $40 in claim one ($200 times 20%); $60 in claim two ($200 times 30%) and $100 in claim three ($200 times 50%).

2.    BWC shall re-evaluate DWRF eligibility and payment rate for  IWs receiving PTD compensation when:

a.    The PTD rate is changed; or,

b.    The IW begins receiving SSD benefits; or,

c.    The IW’s SSD-DWRF weekly rate changes; or,

d.    The IW stops receiving SSD benefits; or,

e.    The DWRF eligibility amount changes, usually January 1 each year.

3.    BWC shall not make payment in care of an IW’s attorney based on an Authorization to Receive Workers’ Compensation Check (C-230) or for any other request for fees to an attorney or anyone who represented or assisted the IW in receiving DWRF benefits. 

4.    BWC shall not withhold any amount from DWRF benefits for family support orders. DWRF benefits are not compensation, but rather are a supplemental award, and therefore are not subject to family support order withholding.

E.    It is BWC’s policy to issue an order to provide notice of the decision regarding DWRF benefits when the initial evaluation is complete and anytime DWRF benefits change.

F.    IWs may not receive a LSA from future DWRF benefits.  For additional information, refer to the Lump Sum Advancement policy.

G.   It is BWC’s policy to calculate settlement of DWRF benefits separate from the settlement amount of other portions of a claim as detailed in BWC’s Lump Sum Settlement policy. 

H.   DWRF Overpayments

1.    If an overpayment of DWRF benefits is identified, it is the policy of BWC to refer claim to the IC for:

a.    The IC to determine if the IW is overpaid; and,

b.    To determine if the overpayment will be collected from the IW.   

2.    If the IC determines that the overpayment is to be collected, it is the policy of BWC to collect DWRF overpayments only from future DWRF benefits according to Hearing Officer Memo S2 – Overpayment Policy.   

 

 

BWC staff may refer to the corresponding procedure for this policy entitled “Procedure for Permanent Total Disability (PTD) and Disabled Worker’s Relief Fund (DWRF)” for further guidance.


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