Policy Name:	Salary Continuation/Wages in Lieu of Temporary Total Compensation
Policy #:	CP-19-09
Code/Rule Reference:	R.C. 4123.56; O.A.C. 4123-5-20
Effective Date:	09/28/21
Approved:	Ann M. Shannon, Chief of Claims Policy and Support
Origin:	Claims Policy
Supersedes:	Policy #CP-19-09, effective 01/22/16
History:	Previous versions of this policy are available upon request.

 

 

I.       POLICY PURPOSE

 

The purpose of this policy is to ensure that BWC properly identifies and records payment of salary continuation by the employer of record (EOR) to ensure that full wages are being paid and the EOR reserves are accurately calculated when an EOR opts to pay salary continuation.

 

II.     APPLICABILITY

 

This policy applies to Field Operations staff.

III.    DEFINITIONS

 

Regular benefits: Any benefit (e.g., accrual of vacation leave, holiday pay and scheduled pay increases) the injured worker (IW) would have received if he/she continued to work for the EOR.

 

Regular full wages: Earnings (i.e., salary/wages) the IW would have received had he/she continued to work for the EOR.

 

Salary continuation/wages in lieu of temporary total compensation (SC): Regular full wages and benefits the EOR pays the IW, in lieu of BWC paying the IW temporary total compensation (TT) or living maintenance (LM).  This includes payment of sick leave and occupational injury leave (OIL).

 

Temporary total compensation (TT): Compensation paid to an IW who is unable to return to the former position of employment on a temporary basis due to the work-related injury or occupational disease and who has not been found to have reached maximum medical improvement (MMI).

IV.   POLICY

  

A.     Payment of SC – It is the policy of BWC that:

1.     The payment of SC cannot be made to an IW who is no longer working for the EOR.

2.     BWC considers SC as payment in lieu of TT only when the IW is eligible to receive TT (e.g., If the IW continues to work a second job, the IW would not be eligible for TT and any payment the EOR makes would not be considered payment in lieu of TT).

3.     The payment of SC shall continue without interruption beginning with the first day of disability in a lost-time claim. Payment shall be made on the EOR’s normal payment cycle.

a.     The EOR cannot hold payment pending a decision from BWC or the Industrial Commission of Ohio (IC). 

i.       If BWC or the District Hearing Officer (DHO) at the IC issues an order denying the claim, then the EOR may discontinue payment of SC during the appeal period.

ii.      Should the DHO overturn BWC’s denial of the claim, or the Staff Hearing Officer (SHO) overturns the DHO’s denial of the claim, then the EOR may begin paying SC again. SC must begin from the last previously paid date.

b.     The EOR does not have to pay SC in a medical-only claim; however, once it appears the IW will lose eight (8) or more days of work, if the EOR chooses to pay SC, the EOR must begin payment immediately or lose its privilege to do so.

c.      Once the IW has missed eight (8) or more days of work, the EOR shall pay the IW for all missed time, including the first seven (7) days missed from work.

4.     The EOR must state its intent to pay the IW SC:

a.     Within seven (7) days of the filing of the First Report of an Injury (FROI); or

b.     For periods of disability that begin after the filing of the FROI, within seven (7) days of the onset of the period of disability.

5.     The EOR must provide the following information to BWC within ten (10) days of receipt of the Salary Continuation Compliance letter, unless excluded below:

a.     The IW’s earnings for the fifty-two (52) fully paid weeks prior to the date of injury (DOI) or date of disability (DOD) as needed for the calculation of the full weekly wage (FWW) and average weekly wage (AWW).

i.       The EOR shall use the Employer Report of Employee Earnings (Wages-Emp) or an equivalent form; and

ii.      The EOR shall inform BWC if the IW did not work for the EOR for the full fifty-two (52) week period.

b.     A Salary Continuation Agreement (C-55), or equivalent, which includes:

i.       The period of time SC will be paid (each period cannot exceed forty-five (45) days);

ii.      The amount of SC to be paid;

iii.     An indication if the SC payment includes replacement earnings from  secondary employment; and

iv.    Signatures of the IW and EOR. 

a)     The title of the person signing on behalf of the EOR must be included.

b)     The EOR must attempt to obtain the IW’s signature. The EOR can submit the form without the signature of the IW; however, BWC must be able to verify with the IW that he/she agrees to the payment of SC by the EOR.

c.      If there is a bargaining unit contract that specifically addresses payment of SC, then it is not necessary for the EOR to submit the C-55. 

i.       BWC may require that the EOR submit a copy of the bargaining unit contract.

ii.      While the C-55 is not required, proof of payment as outlined in the contract and wages are required.  Section IV.A.5.a of this policy defines the wages that are required.

iii.     The EOR must submit documentation for payments made beyond the period covered in the bargaining unit contract.

6.     Considerations for determining if SC is payable are as follows:

a.     SC cannot be paid by the EOR once TT is established and paid in a claim. The only exception is when the payment of SC is according to a bargaining unit contract.

b.     SC should be paid only for periods of disability related to the allowed conditions in the claim.

7.     The requirements for continued payment of SC are as follows:

a.     It is the policy of BWC that an EOR, without a bargaining unit contract, must submit a newly completed C-55 or equivalent form for each subsequent forty-five (45) day period of SC.

b.     If there is a bargaining unit contract, the EOR must submit the C-55 or proof of ongoing payment upon expiration of the previous period reported.

8.     An EOR must notify BWC within three (3) business days:

a.     When the EOR stops payment of SC; or

b.     When the amount paid to the IW changes.

9.     The payment of SC does not mean the EOR has certified the claim or has waived any appeal rights.

10.  The EOR’s calculation of regular full wages for the payment of SC is as follows: 

a.     If the IW has no variance in earnings, the EOR shall pay SC based on the IW’s regular full wages.

b.     The EOR may determine the regular full wages by calculating the average salary based on the prior earnings when the IW:

i.       Does not work a regular schedule;

ii.      Is paid on commission; or

iii.     Is paid other variable earnings.

c.      Payments of shift differential, bonuses and injury-on-duty (IOD) pay shall be included in the payment of SC.

d.     The EOR may choose not to include payments of overtime, bonuses and/or piecework in SC payments; however, because these are included in the calculation of the FWW and AWW, the TT rate could exceed the SC payment amount.

e.     The EOR may pay the IW more than the regular full wages.

11.  The EOR shall continue to provide the IW all regular benefits the IW would have received if he/she continued to work.

12.  The EOR may pay SC that includes payment for the additional job(s) the IW has at the time of injury. 

13.  Considerations for determining if SC is payable during a company shut-down are as follows:

a.     The EOR does not have to pay SC during the period of a company shut-down; however, the IW is eligible for TT. The EOR may pay SC to avoid payment of TT and having a reserve set.

b.     If an IW is laid off temporarily, BWC shall consider the IW an employee and the EOR may pay SC.

c.      If the layoff is permanent, the layoff is considered separation of employment and the EOR may no longer pay SC.

14.  If the EOR fails to meet the SC requirements of this policy, BWC shall consider payment of TT and this may affect the EOR’s eligibility to pay the IW SC in the future.

15.  The EOR may elect to pay the IW regular full wages in lieu of LM during the IW’s participation in a vocational rehabilitation plan.

a.     If the EOR previously paid SC and the IW is subsequently paid LM, the EOR can resume payment of SC after LM ends.

b.     If the IW previously received TT because the EOR did not pay SC and the IW receives LM, the EOR cannot begin payment of SC once LM ends.

 

B.     TT Issues That May Impact SC – It is the policy of BWC that:

1.     If TT is ordered and paid, BWC shall not accept reimbursement for the TT from the EOR or IW.

2.     For purposes of this policy, LM will be treated the same as TT.

a.     Either the IW or the EOR may choose to discontinue payment of SC in lieu of TT or LM at any time, except as required by a bargaining unit contract.

b.     If the IW chooses to receive TT instead of SC, BWC will only consider payment of TT when the IW submits a Request for Temporary Total Compensation (C-84) and supporting medical documentation.

3.     The amount paid in SC does not count toward the EOR’s TT reserve.

4.     If the IC issues an order allowing the EOR to pay SC after the payment of TT, BWC will declare an overpayment to the IW. The TT reserve will not be suppressed, and the EOR will not receive credit for the period paid.

5.     BWC will not adjust the EOR’s experience for TT paid in a claim if the EOR pays SC after BWC pays TT.

6.     The IW may request TT when there is a difference between the SC rate and the TT maximum for the claim.

7.     If the EOR does not provide required documentation for SC:

a.     BWC shall not document payment of SC in the claim; and

b.     BWC shall consider payment of TT compensation upon receipt of a C-84 and supporting medical documentation.

8.     When the EOR is paying SC incorrectly, BWC may pay supplemental TT, if appropriate.

9.     BWC shall not pay TT in a claim where an injury occurred during vocational rehabilitation if the EOR continues to pay SC in the original injury claim.

 

C.    Return to Work

1.     The EOR may choose to pay the IW his/her regular full wages if the IW returns to work in a job that pays less.  This is not considered a SC payment because the payment is not being paid in lieu of TT.

2.     The EOR is not required to provide information to BWC regarding these payments.

 

D.    Employee Leave Pay

1.     BWC may consider sick leave paid by the EOR as payment of SC.

2.     All other forms of employee leave (e.g., vacation, compensatory time, personal, disability and paid time off used other than sick) paid by the EOR are not considered SC.

 

E.     Other SC Policy Issues

1.     SC is considered compensation for purposes of determining timely filing of an Application for Determination of Percentage of Permanent Partial Disability or Increase of Permanent Partial Disability (C-92) application.  An IW must wait until 26 weeks after the payment of salary continuation ends before he or she may file a C-92. 

2.     It is the policy of BWC to:

a.     Pay the Violation of Specific Safety Requirements (VSSR) award to the IW who is receiving SC in lieu of TT.

b.     Recognize that, effective 07/01/12, the EOR may pay SC in a claim that is in the deductible program and has a DOI on or after 7/1/2012.

c.      Recognize that the EOR cannot pay SC in a claim that is in the deductible program and has a DOI prior to 7/1/2012.

 

BWC staff may refer to the corresponding procedure for this policy entitled “Salary Continuation/Wages in Lieu of Temporary Total Compensation” for further guidance.