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OhioBWC - Basics: (Policy library) - File

Policy Name:

SCHEDULED LOSS COMPENSATION

Policy #:

CP-19-01

Code/Rule Reference:

R.C. 4123.57 (B)

O.A.C. 4123-3-15 (C) and 4123-3-37

Effective Date:

10/02/15

Approved:

Rick Percy, Chief of Operational Policy, Analytics and Compliance (Signature on file)

Origin:

Claims Policy

Supersedes:

05/19/15; 08/01/13; 04/23/13; Scheduled Loss Compensation policy CP-19-01 dated 09/28/12.

History:

New 09/10/12; Rev. 09/18/12; 09/28/12; 04/23/13; 08/01/13; 05/19/15

Review date:

10/02/20

 

 

      I.        POLICY PURPOSE

 

The purpose of this policy is to ensure that BWC processes applications for scheduled loss compensation and pays the allowed award in weekly installments, according to the schedule provided in R.C. 4123.57(B).

 

    II.        APPLICABILITY

 

This policy applies to Field Operations and Legal Division staff.

 

   III.        DEFINITIONS

 

Amputation:  to cut or remove a limb or body part from the body.

 

Ankylosis:  total stiffness of or contractures due to scars or injuries that may cause joints to be useless.

 

Corrective eye surgery:  for purposes of this policy, addresses the visual problems, but not a wholly equal substitute for the natural lens.  In addition, corrective eye surgery is not necessarily a permanent solution as there can be future problems with the implant.  (e.g., corneal lens implants.)

 

Dependent:  A member of the family of the decedent, or bears to the decedent the relation of surviving spouse, lineal descendant, ancestor, or brother or sister, who relied on the decedent, in whole or in part, for financial support.

 

Enucleation:  to remove without cutting into.

 

Loss of hearing:  for purposes of this policy, a permanent and total incapability of receiving auditory acuity.

 

Loss of use:  Permanent impairment of a body part without severance as defined by body part in the statute.

 

Loss of vision:  for the purposes of this policy, the loss of uncorrected vision which is the percentage of vision acuity actually lost as a result of the injury or occupational disease.

 

Restorative eye surgery:  for purposes of this policy, eliminates the loss of vision on a permanent basis.

 

Total loss of use:  applies to only fingers and thumbs as defined by case law.  For thumbs, total loss of use means more than one-half of the thumb is useless.  For fingers, total loss of use means more than two-thirds of a finger is useless.

 

  IV.        POLICY

 

A.   General policy statements

 

1.    It is the policy of BWC to consider upon application, a request for scheduled loss compensation on an allowed condition in a claim.  The application shall be made on a Motion (C-86).

 

2.    It is the policy of BWC to ensure that applications for scheduled loss compensation are either allowed by BWC or are referred to the Industrial Commission (IC) for determination.

 

3.    It is the policy of BWC to pay the allowed award in weekly installments, according to the schedule associated with the applicable injury (i.e., amputation, loss of use, ankylosis, loss of vision, and/or loss of hearing).

 

4.    Based on statutory changes and the development of case law, the payments are made as follows:

a.    Bi-weekly if the application is pending or final on or after September 10, 2012;

b.    Lump sum if final between October 12, 2010, and September 9, 2012.

 

5.    Scheduled loss compensation awards may also be called Permanent Partial (PP) or Paragraph B awards.  For consistency purposes, the policy and procedures shall use the language “scheduled loss compensation.”

 

6.    An application for scheduled loss compensation may be made any time during the life of a claim.

 

7.    It is the policy of BWC to consider requests for Lump Sum Advancement (LSA) on a scheduled loss compensation award.  Refer to the Lump Sum Advancement policy for further information.

 

8.    It is the policy of BWC that an injured worker is not entitled to receive a scheduled loss compensation award and a Percentage Permanent Partial (%PP) award for the same part of body without applying an offset between the two awards.

 

9.    It is the policy of BWC that a previous award of %PP impairment granted for the same part of body for which a scheduled loss compensation award will be granted must be deducted from the scheduled loss compensation award.  State ex rel. Maurer v. Industrial Commission of Ohio (1989), 47 Ohio St.3d 62.

 

10.  It is the policy of BWC that an injured worker may receive both a Percentage Permanent Partial (%PP) award and scheduled loss compensation award concurrently in the same claim or different claims when the parts of body are different.

 

11.  It is the policy of BWC that if the scheduled loss compensation award produces a residual impairment beyond the scheduled loss/loss of use, an injured worker may file a %PP for the additional impairment.

 

12.  It is the policy of BWC that a previous award of Temporary Partial compensation granted for the same part of body for which a scheduled loss compensation award will be granted must be deducted from the scheduled loss compensation award.

 

13.  Multiple scheduled loss compensation awards for multiple body parts shall be paid consecutively, not concurrently.  State ex rel. Swallow v. Industrial Commission of Ohio (1988), 36 Ohio St.3d 55.

 

14.  Statutory permanent total disability (PTD) may be awarded when an injured worker has a total loss of, or a loss of use of, an entire limb. State ex rel. Thomas v. Industrial Commission of Ohio (2002), 97 Ohio St.3d 37.  This is true for claims with a date of injury prior to August 25, 2006.  However, Senate Bill (SB) 7 negated the holding for dates of injury on or after August 25, 2006.

 

B.   Amputations

 

1.  The severance of the body part must have occurred as a result of the work-related injury.

 

2.  An injured worker is entitled to a scheduled loss compensation award when he/she sustains a loss of a body part that is the result of severance, and reattachment of the same body part has not been successful (functional).

a.    If the same severed body part is reattached, an award will not be given when medical documentation supports that the reattachment was successful (functional).  State ex rel. Welker v. Industrial Commission of Ohio (2001), 91 Ohio St.3d 98.

b.    The injured worker may request an amputation award if the reattachment subsequently becomes unsuccessful.

 

3.    An accurate description of the point of amputation must be clearly stated by a physician in the medical documentation.

 

4.    An injured worker may be entitled to a scheduled loss compensation award even if he/she receives a prosthetic device to replace the amputated body part.

 

5.    When there is an increase in the scheduled loss compensation due to an additional amputation, the scheduled loss compensation award is paid but the previously paid award is deducted from the amount.

 

6.    Fingers, hands, and/or arms

a.       The loss of one-third or distal phalange of any finger other than the first finger (i.e., the thumb) is considered equal to the loss of one-third of the finger.  The amputation must be at or near the joint.  The loss of the finger near the proximal interphalangeal (PIP) joint is equal to the loss of two-thirds of the finger.

b.      The loss of a second, or distal, phalange of the thumb is considered equal to the loss of one-half of such thumb; the loss of more than one-half of such thumb is considered equal to the loss of the whole thumb.

c.       The scheduled loss compensation award for the loss of two or more fingers by amputation or ankylosis cannot exceed the amount for the loss of a hand.  The injured worker cannot combine the loss of parts of four fingers to equal the total loss of two fingers, for purposes of qualifying for a total loss of hand award.  State ex rel. Honda of America MFG., Inc. v. Industrial Commission of Ohio, 183 Ohio App.3d 732 (2009).

d.      If a loss of the arm is payable, the injured worker is not entitled to an additional award for loss of the hand.  The award for the arm includes the award for the hand.

e.       If the injured worker’s thumb is amputated and replaced with the great toe, BWC will only pay for the amputation of the thumb.  There is no award for the loss of the toe.

f.       Amputation below the elbow joint is considered equal to the loss of the hand.  If the amputation is at the elbow, a determination must be made regarding the functionality of the elbow before determining if the injured worker is eligible for the loss of the hand or loss of the arm.

g.       Amputation above the elbow will result in an award for the loss of the arm.  A scheduled loss compensation award cannot be granted for partial loss of the arm.

 

7.    Toes, feet, and/or legs

a.       Loss of the great toe up to the interphalangeal joint is equal to one-half loss of the great toe; loss beyond the interphalangeal joint is equal to the loss of the great toe.  For other toes, a loss of two-thirds of the toe is required for a scheduled loss compensation award to be granted.  No partial loss award is granted for toes other than the great toe.

b.      When there is an increase in the scheduled loss compensation due to an additional amputation, the amputation is paid less the previously paid amount.

c.       If a loss of the leg is payable, the injured worker is not entitled to an additional award for loss of the foot.  The award for the leg includes the award for the foot.

d.      Amputation above the ankle, but below the knee, entitles the injured worker to loss of the foot.  State ex rel. McLean v. Industrial Commission of Ohio (1986), 25 Ohio St.3d 90.  If the amputation point is at the ankle, a determination of functionality of the ankle must be made.  Amputation above the knee entitles the injured worker to the loss of the leg.  If the amputation point is at the knee, a determination of functionality of the knee must be made.

 

C.   Loss of use, including ankylosis

 

1.  The medical documentation provided must support that the loss of use is total and permanent.  Permanent impairment of a body part without severance may entitle the injured worker to an award.  The loss of use must be clearly documented by a physician.

 

2.  First finger (i.e., thumb) and other fingers

a.    First finger (i.e., the thumb) may have a:

                                          i.    Loss of use for ½ of the thumb; or

                                         ii.    Total loss of use for entire thumb.

b.    Due to the uniqueness of the first finger (i.e., the thumb), the loss of use of the interphalangeal (IP) joint, the joint between the distal and proximal phalanges, is considered equal to the loss of one-half of the first finger (i.e., the thumb).  State ex rel. Riter v. Industrial Commission of Ohio (2001), 91 Ohio St.3d 89.  Riter v IC does not apply to amputations of the first finger (i.e., the thumb) unless ankylosis of the first finger accompanies the first finger amputation.

c.    Loss of use of the metacarpophalangeal joint between the proximal phalanx and metacarpal bone is usually considered equal to the total loss of use of the whole first finger (i.e., the thumb).

d.    Other fingers, second through fifth:

                                          i.    Loss of use may include:

1.    1/3 of the finger; or

2.    2/3 of the finger.

                                         ii.    Total loss of use for entire finger.

 

3.  The loss of more than the distal and middle phalanges (including loss of the PIP joint) is equal to total loss of the finger.  Awards shall not exceed 175 weeks, which is the number of week’s payable for the total loss of the hand.

 

4.  When there is an increase in the scheduled loss compensation due to an additional loss of use, the loss of use is paid less the previously paid award.

 

D.   Loss of vision

 

1.    A loss of vision award is based on the injured worker’s post injury vision prior to correction by glasses, contacts, corneal transplants, or surgical intervention.  Kroger v. Stover (1987), 31 Ohio St.3d 229.  If an injured worker has an eye injury that will heal without surgery, the scheduled loss compensation award will not be determined until the healing process is completed.  However, if the injured worker requires corrective surgery as a result of the injury, the scheduled loss compensation award is determined based on the condition prior to non-restorative surgical correction and healing.

 

2.    The minimum award for each eye is twenty-five percent loss of uncorrected vision.  Although at least a twenty-five percent loss of uncorrected vision is required to receive a loss of vision scheduled loss compensation award, the injured worker may have loss of vision of less than twenty-five percent granted as an allowed condition in the claim.

 

3.    The percentage needed for loss of vision is the percent of vision loss, not the percentage of whole person impairment (WPI).

 

4.    A loss of vision award requires medical documentation by an ophthalmologist and should include the injured worker’s pre-injury uncorrected vision, in addition to post-injury uncorrected vision, except when the loss of vision is based on psychiatric factors.  BWC may seek additional medical evidence to support exceptions.

 

5.    When the injured worker has permanently lost an eye due to enucleation he/she is entitled to total loss of vision for that eye.

 

6.    The loss of vision for traumatic cataract is based on the injured worker’s post injury vision prior to correction by glasses, contacts, or surgical intervention.

a.    Cataracts that develop due to prolonged usage of medications, advancing age or other conditions are not considered traumatic.

b.    Cataracts that develop due to prolonged usage of medication may be considered for additional allowance as a flow-through condition as a known side effect of treatment for another allowed condition.  It is important that the treatment for the other condition must be generally accepted as causing or associated with the development of cataracts.

 

E.    Loss of hearing

 

1.    Scheduled loss compensation for loss of hearing shall be awarded only when the injured worker has permanent and total loss of hearing in one ear or permanent and total loss of hearing in both ears as a result of a work-related injury.

 

2.    An injured worker may have loss of hearing allowed in a claim, but not be eligible for a scheduled loss compensation award for loss of hearing.

 

3.    A loss of hearing award requires medical documentation from an ear, nose, and throat (ENT) physician (otolaryngologist) except when the loss of hearing is based on psychiatric factors.  BWC may seek additional medical evidence to support exceptions.  The ENT should determine and document that the loss of hearing was due to a work-related injury.

 

F.    Payment of scheduled loss compensation awards

 

1.    The date of injury, not the date of amputation or actual loss of use, shall be used when determining the rate at which the award will be paid.

 

2.    BWC shall use the following dates to begin the scheduled loss compensation award:

a.    The date of amputation or actual loss of use date; or

b.    For loss of use by reason of ankylosis, the date the physician makes the diagnosis of the loss of use; or

c.    The date of the loss as determined by the medical documentation from the physician or the IME report; and

d.    In no case shall the award be prior to two years from the date of application.

 

3.    For claims with a date of injury:

a.    Prior to November 3, 1989, the injured worker is paid at sixty-six and two-thirds percent of his/her average weekly wage (AWW) at the time of the injury multiplied by the number of weeks, not to exceed the statewide average weekly wage (SAWW) for the date of injury.

b.    On or after November 3, 1989, compensation payable per week to the injured worker is one hundred percent of the SAWW according to R.C. 4123.62(C).

 

G.   Death of an injured worker

 

1.    When scheduled loss compensation awards are granted and/or paying but there remains an amount unpaid prior to the injured worker’s date of death, BWC shall:

a.    Pay scheduled loss compensation payable through the date of death, in accordance with the Accrued Compensation policy and procedure.

b.    Pay in this order:

                                          i.       The surviving spouse, if one exists; or,

                                         ii.       Other dependent person; or,

                                        iii.       If no surviving spouse or other dependent person exists, the estate of the IW; or,

                                       iv.       If no estate exists, another person, including an adult child of the IW, who shows proof of payment of medical bills or funeral expenses for the IW, up to the amount of the bill provided but not to exceed the accrued amount that is payable.

                                        v.       Accrued compensation may be apportioned between the surviving spouse and other dependents.

 

2.    When scheduled loss compensation awards are granted before or after death, and there is scheduled loss compensation payable after the date of death, BWC:

a.    May grant a scheduled loss compensation award when an injured worker’s surviving spouse or other dependent files an application for an amputation or loss of use.

b.    Shall pay, upon application, an unpaid scheduled loss compensation award for the period after the injured worker’s date of death in biweekly payments only to the surviving spouse or other dependent.

c.    Shall pay, if granted:

                                            i.    To the surviving spouse if one exists; or, 

                                           ii.    If no surviving spouse exists, to another dependent.

d.    Shall not grant a lump sum advancement against the unpaid scheduled loss compensation payments to a surviving spouse or other dependent.

e.    Shall not pay scheduled loss compensation awards after the death of the injured worker’s surviving spouse or other dependent.

 

3.    BWC recognizes that an estate is entitled to the accrued compensation of a scheduled loss compensation award but is not entitled to the unpaid balance of the scheduled loss compensation award.  Estates are not entitled to the ongoing remainder of the balance because an estate cannot be a dependent.  State ex rel. Liposchak v. Indus. Comm., 90 Ohio St.3d 276, 2000-Ohio-73; State ex rel. Estate of Sziraki v. Admr., Bur. of Workers’ Comp., 137 Ohio St.3d 201, 2013-Ohio-4007.

 

 

BWC staff may refer to the corresponding procedure for this policy entitled “Procedure for Scheduled Loss Compensation” for further guidance.


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