Continuation/Wages in Lieu of Temporary Total Compensation
R.C. 4123.56; O.A.C. 4123-5-20
Shannon, Chief of Claims Policy and Support
#CP-19-09, effective 01/22/16
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.
policy applies to Field Operations staff.
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.
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
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
A. Payment of SC – It is
the policy of BWC that:
payment of SC cannot be made to an IW who is no longer working for the EOR.
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).
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
EOR cannot hold payment pending a decision from BWC or the Industrial
Commission of Ohio (IC).
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.
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.
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.
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.
EOR must state its intent to pay the IW SC:
seven (7) days of the filing of the First Report of an Injury (FROI); or
periods of disability that begin after the filing of the FROI, within seven (7)
days of the onset of the period of disability.
EOR must provide the following information to BWC within ten (10) days of
receipt of the Salary Continuation Compliance letter, unless excluded
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).
EOR shall use the Employer Report of Employee Earnings (Wages-Emp) or an
equivalent form; and
EOR shall inform BWC if the IW did not work for the EOR for the full fifty-two
(52) week period.
Continuation Agreement (C-55), or equivalent, which includes:
period of time SC will be paid (each period cannot exceed forty-five (45)
amount of SC to be paid;
indication if the SC payment includes replacement earnings from secondary
of the IW and EOR.
title of the person signing on behalf of the EOR must be included.
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.
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.
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.
EOR must submit documentation for payments made beyond the period covered in the
bargaining unit contract.
for determining if SC is payable are as follows:
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.
should be paid only for periods of disability related to the allowed conditions
in the claim.
requirements for continued payment of SC are as follows:
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.
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.
EOR must notify BWC within three (3) business days:
the EOR stops payment of SC; or
the amount paid to the IW changes.
payment of SC does not mean the EOR has certified the claim or has waived any
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
ii. Is paid on commission;
iii. Is paid other variable
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.
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
EOR may elect to pay the IW regular full wages in lieu of LM during the IW’s
participation in a vocational rehabilitation plan.
the EOR previously paid SC and the IW is subsequently paid LM, the EOR can
resume payment of SC after LM ends.
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:
TT is ordered and paid, BWC shall not accept reimbursement for the TT from the
EOR or IW.
purposes of this policy, LM will be treated the same as TT.
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.
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.
amount paid in SC does not count toward the EOR’s TT reserve.
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.
will not adjust the EOR’s experience for TT paid in a claim if the EOR pays SC
after BWC pays TT.
IW may request TT when there is a difference between the SC rate and the TT
maximum for the claim.
the EOR does not provide required documentation for SC:
shall not document payment of SC in the claim; and
shall consider payment of TT compensation upon receipt of a C-84 and supporting
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
may consider sick leave paid by the EOR as payment of SC.
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
E. Other SC Policy Issues
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.
is the policy of BWC to:
the Violation of Specific Safety Requirements (VSSR) award to the IW who is
receiving SC in lieu of TT.
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.
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.