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OhioBWC - Basics: (Policy library) - File

Temporary Total Compensation Policy 11-20-2015

Policy Name:

Temporary Total Compensation

Policy #:

CP-20-02

Code/Rule Reference:

O.A.C. 4123-3-09(B)(1)(b), 4123-3-32, 4123-5-18(C) and (D), 4123-5-20, 4123-6-20(B)

R.C. 4123.511(H), 4123.53(B), 4123.55, 4123.56, 4123.61, 4123.651(C), 5101.141(C)(1)-(2a), 3119.01(C)(7)(f)

Industrial Commission of Ohio (IC) Hearing Officer Memo C3

Effective Date:

11/20/15

Approved:

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

Origin:

Claims Policy

Supersedes:

Temporary Total Compensation policy number CP-20-02 dated 07/28/15

History:

New 07/28/15; Rev. 11/20/15

Review date:

11/20/20

 

 

I. POLICY PURPOSE

 

The purpose of this policy is to ensure that the Ohio Bureau of Workers’ Compensation (BWC) evaluates and makes an accurate determination regarding payment of temporary total compensation (TT) to an injured worker (IW) who is unable to return to the former position of employment for eight days or more due to a work-related injury or occupational disease.   

 

II. APPLICABILITY

 

This policy applies to Field Operations staff and BWC attorneys.  

 

III. DEFINITIONS

 

Average Weekly Wage (AWW):  For purposes of this policy, the basis upon which to compute benefit payments subsequent to the first twelve weeks of temporary total disability.

 

Disability Evaluators’ Panel (DEP):  Qualified medical specialists hired by BWC to provide quality, impartial medical evaluations and medical file reviews to support claims management.    

 

Due Process:  Legal principle that government may not deprive an individual of life, liberty, or protected property rights without providing notice and an opportunity to be heard.

 

Extent of Disability (EOD) Exam:  An evaluation of the condition(s) allowed in the IW’s claim in regard to:

  • The IW’s ability to return to the former position of employment;
  • Restrictions that prevent the IW’s return to the former position of employment;
  • The IW having reached maximum medical improvement (MMI);
  • The feasibility of a referral for vocational rehabilitation services; and
  • The IW’s eligibility for continued TT.

 

Full Weekly Wage (FWW):  For purposes of this policy, the basis for payment of compensation for the first 12 weeks of TT.

 

Lost Time Claim:  A claim with eight or more days of lost time directly caused by a work-related injury, even if compensation or wages in lieu of compensation have not been paid to the IW or in any claim in which BWC awards compensation. 

 

Maximum Medical Improvement:  A treatment plateau (static or well-stabilized) at which no fundamental functional, physiological, or psychological change can be expected within reasonable medical probability in spite of continuing medical or rehabilitative procedures.  An IW may need supportive treatment to maintain this level of function.

 

Medical Only Claim:  A claim with seven or fewer days of lost time from work directly caused by a work-related injury, for which the IW receives no compensation for lost wages (e.g., TT, salary continuation) or is not awarded any compensation for the life of the claim. 

 

Net Pay:  Gross wages minus taxes.

 

Paid Time Off:  A pool of time offered by the employer that the IW can call in at any time; can be used as sick time, vacation time, or holiday pay.

 

Parties to the Claim:  The IW, IW representative, employer, and employer representative.  BWC is considered a party to the claim and may present arguments when:

  • The employer or employer representative does not appear at a hearing; or

·         The employer or employer representative does appear at a hearing, as long as the arguments and/or evidence presented by BWC is not cumulative or duplicative of what the employer has presented.

 

Profit Sharing:  Employees are paid a portion of the profits of a business.

 

Voluntary Abandonment:  When a worker leaves the job at which the injury occurred for reasons not related to the injury, or otherwise removes himself/herself from the workforce. 

 

Wage Agreement:  An agreement between the IW and employer in which the employer advances wages to the IW for a period of up to 12 weeks (except under special circumstances) closely following the date of injury or disability and with the understanding that BWC will forward the IW’s check(s) for TT to the employer as reimbursement for the advancement when TT becomes payable to the IW. 

 

IV. POLICY

  1. General Policy Statements - It is the policy of BWC to:

1.    Provide due process when a new (initial or subsequent) period of TT has been requested.  

2.    Compensate an IW who is totally disabled from work for eight (8) or more days due to a work-related injury or occupational disease.

    1. It is BWC’s policy to begin paying TT on day eight (8) when the IW is disabled for seven (7) or more days, but less than 14 consecutive days, due to a work-related injury.
    2. BWC shall begin to pay TT for the first seven (7) days of disability once an IW has been disabled for 14 or more consecutive days due to a work-related injury, whenever that occurs in the life of the claim.

3.    Pay TT for the first 12 weeks at 72% of the IW’s FWW, subject to the statewide maximum for the injury year and any applicable offsets.

a.    If the FWW is at or below 1/3 of the statewide average weekly wage (SAWW) for the injury year, TT will be paid at the FWW.

b.    If the FWW is above 1/3 of the SAWW for the injury year, but 72% of the FWW is at or below 1/3 of the SAWW for the injury year, TT will be paid at 1/3 of the SAWW for the injury year.

c.    If 72% of the FWW is above 1/3 of the SAWW for the injury year and at or below the statewide maximum for the injury year, TT will be paid at 72% of the FWW.

d.    If 72% of the FWW is above the statewide maximum for the injury year, TT will be paid at the statewide maximum for the injury year.

4.    Pay TT after the first 12 weeks at 66 2/3% of the IW’s AWW, subject to the statewide maximum for the injury year and any applicable offsets.

a.    If the AWW is at or below 1/3 of the SAWW for the injury year, TT will be paid at the AWW.

b.    If the AWW is above 1/3 of the SAWW for the injury year, but 66 2/3% of the AWW is at or below 1/3 of the SAWW for the injury year, TT will be paid at 1/3 of the SAWW for the injury year.

c.    If 66 2/3% of the AWW is above 1/3 of the SAWW for the injury year and at or below the statewide maximum for the injury year, TT will be paid at 66 2/3% of the AWW.

d.    If 66 2/3% of the AWW is above the statewide maximum for the injury year, TT will be paid at the statewide maximum for the injury year.

5.    Consider the following as payments in lieu of TT and count them toward the first 12 weeks of TT:

a.    Living Maintenance;

b.    Salary Continuation;

c.    Full sick leave;

d.    Non-occupational sickness and accident benefits fully funded by the employer of record; and

e.    Occupational Injury Leave (OIL).

6.    Make payment of TT based on the available return to work information.

7.    Automatically reassign a Medical Only claim to the appropriate service office for investigation and processing when an IW submits a Request for Temporary Total Compensation (C-84)/equivalent form.  

8.    Issue a BWC Order to grant TT or refer the request for payment of TT to the IC, unless the IW withdraws the request.

9.    Determine if an IW is receiving Unemployment Compensation benefits from the Ohio Department of Job and Family Services (ODJFS) prior to issuing payment of TT.  

10.  Prohibit payment of TT when the IW:

a.    Has returned to work;

b.    Is released without restrictions to return to the former position of employment by the treating physician;

c.    Refuses a written offer of work within his/her physical capabilities made by the employer of record or another employer;

d.    Has reached MMI;

e.    Is working (full time or part time) for any employer during the disability period;

f.     Has returned to work and is requesting TT for a doctor’s appointment and/or medical treatment/services;

g.    Voluntarily abandons his/her employment;

h.    Receives profit sharing benefits over the same period the TT is requested, and the IW attended meetings and other employment-related activities that would constitute working.  However, BWC may pay TT and profit sharing benefits over the same period if the IW is not performing any form of employment-related activity;

i.      Is receiving Department of Administrative Services (DAS) Hostage Leave according to the collective bargaining agreement; 

j.      Is a volunteer and the IW has lost no earnings;

k.    Is serving as an elected political official and is attending meetings, whether frequent or infrequent, or performing any other activity related to the political position; 

l.      Is on active military duty;

                                  i.    Generally, active duty requires physical activities and pay that is inconsistent with the receipt of TT.

                                 ii.    Soldiers who report for any drills, including weekend duty, are often paid for reporting for duty and any payment received as a result of reporting for duty is also inconsistent with the receipt of TT.

m.   Is working as a poll worker.  The poll worker is considered an employee of the Board of Elections for the day worked at the polls; or 

n.    Elects to use paid time off (PTO) as sick leave.

 

 

  1. The Request for TT

1.    It is the policy of BWC to consider payment of TT when it receives:

a.    A C84 or equivalent form with no IW signature filed on behalf of an IW who is completely incapacitated (e.g., coma); or

b.    A completed C-84 or an equivalent form; and

c.    Medical evidence (See Section IV.C., below).  

2.    The C-84/equivalent form must have at least the following information for BWC to award TT:

a.    An IW signature on the completed form, unless the IW is completely incapacitated (e.g., coma) and unable to sign the C-84/equivalent form;

i.      The date of the IW’s signature is generally close in time to the requested period of disability the treating physician has certified. If the signature is not close in time, BWC may further investigate.  

ii.     The IW’s attorney cannot sign the C-84/equivalent form on behalf of the IW. 

iii.    The only exception to having a signed C-84/equivalent form is when the IC issues an IC Order granting TT.  For all subsequent requests, BWC shall only grant on-going TT when the IW has signed the C-84/equivalent form.

b.    Verification of receipt (or lack of receipt) of any other benefits, salary continuation or earnings.

i.      The IW’s receipt of welfare benefits has no impact on the payment of TT unless the IW is working to receive the benefits. 

ii.     When receipt of welfare benefits is indicated, BWC shall contact the IW to determine if the IW is required to work in order to receive the benefits.

iii.    If the IW claims he/she has a waiver of the work requirement due to his/her disability, BWC may consider the waiver by verifying it by phone with the Welfare Department; however, the IW will need to submit written verification as soon as possible.

c.    Work history over the requested period;

d.    Light duty availability; and

e.    Certification that the IW understands he/she cannot work and collect TT.  

 

  1. Supporting Medical Evidence

1.    It is BWC’s policy to require medical documentation [e.g., Physician’s Report of Work Ability (MEDCO-14)], except as noted in C2. below, to pay initial and subsequent requests for TT from the treating physician to support the:

a.    Period of disability the IW is requesting; and

b.    Disability is due to the allowed work-related injury/disease.

2.    EXCEPTION:  When TT and medical benefits are identified on a First Report of Injury, Occupational Disease, or Death (FROI-1), field staff may approve payment of TT for a period up to four (4) weeks without medical documentation if the FROI-1 is:

a.    Properly completed;

b.    Signed by both parties;

c.    Certified by the employer; and

d.    Non-controversial. 

3.    It is BWC’s policy to require the following information from the treating physician in order to consider payment of TT:

a.    The date of the MEDCO-14/medical documentation;

b.    The date of the last examination;

c.    The International Classification of Diseases (ICD) diagnosis code(s) recognized in the claim for all conditions and all parts of the body being treated that are affecting the length of disability, including a primary diagnosis code, with a narrative description identifying the  condition(s) and specific area(s) of the body being treated;

d.    Any reason why recovery has been delayed;

e.    The date temporary total disability began;

f.     The current physical capabilities of the claimant;

g.    An estimated or actual return to work date;

h.    An indication of need for vocational rehabilitation;

i.      Objective findings;

j.      Clinical findings supporting the above information.                        

4.    It is BWC’s policy to consider payment of TT when supporting medical documentation (including the MEDCO-14) lists an allowed condition(s) only as causing temporary total disability.           

5.    BWC will not consider payment of TT when supporting medical documentation (including the MEDCO-14) lists a condition(s) that is not allowed or a disallowed condition(s) as causing temporary total disability.  In this situation, the supporting medical documentation is defective, and it is BWC’s policy to attempt to obtain medical evidence that supports temporary total disability due to a condition(s) allowed in the claim. 

6.    It is BWC’s policy to require the treating physician’s signature on supporting medical documentation in order to pay TT.  Refer to the Medical Evidence for Diagnosis Determinations policy for more information regarding signatures on supporting medical evidence.

7.    BWC policy does not require the treating physician to be BWC-certified to complete and sign a MEDCO-14/equivalent form.

 

 

D.   Considerations for Determining if TT is Payable

1.    BWC may pay TT over the same period as the following:

a.    Vacation pay;

b.    Vacation pay in lieu of sick leave;

c.    Holiday pay;

d.    Compensatory time;

e.    Sick leave benefits paid by an employer other than the employer of record;

f.     Sick leave benefits paid by the employer of record that are intended to supplement TT;

g.    Jury duty pay;

h.    PTO used as any leave time other than sick leave;

i.      Supplemental payments;

j.      Benefits of a non-occupational sick and accident program that is fully or partially funded by the IW;

k.    Public Employees Retirement System (PERS) benefits;

l.      Social security disability benefits;

m.   Severance pay;

n.    Unused accrued sick leave paid in a lump sum (e.g., employee cashing in sick leave or receiving payment upon separation);

o.    Unused accrued vacation time; or

p.    Federal unemployment compensation paid by Ohio.

2.    BWC may pay TT with an offset:

a.    In claims with a date of injury on or after 11/3/1989, when an IW is receiving social security retirement benefits (the actual amount of the benefits is not a factor) and where the TT rate is greater than 66 2/3% of the SAWW for the date of injury;

b.    When an IW is receiving unemployment compensation that was paid and funded by the Ohio Department of Job and Family Services (ODJFS);

c.    When an IW is receiving benefits of a non-occupational sick and accident program that is fully funded by the employer of record; or

d.    When the IW has received sick leave from the injury employer at less than 100% of the IW’s earnings and the sick leave is not intended to supplement TT. If the sick leave is paid from the injury employer at 100% of the IW’s earnings, and the sick leave replaces earnings, BWC shall not pay TT.  Also see IV.D.5. (Sick Leave Buy Back/Wage Agreement) below.

3.    When the treating physician releases the IW to return to work with restrictions, but an employer does not accommodate the IW’s restrictions, BWC may continue to pay TT to the IW.  As long as the restrictions are preventing the IW from performing the job the IW held at the time of the injury, BWC shall continue payment of TT to an eligible IW unless:

a.    An employer accommodates the restrictions; or

b.    The treating physician releases the IW to return to the former position of employment; or

c.    The treating physician makes a finding that the IW has reached MMI.

4.    BWC shall not consider a request for TT until a final decision is reached on a previously filed request for an additional condition(s) when the requested condition(s) is the sole basis for the period of disability covered by the TT. 

5.    Sick Leave Buy Back/Wage Agreement – It is the policy of BWC to honor a sick leave buy back/wage agreement, and issue payment of TT to an IW when TT is payable and a written agreement between the employer and IW is submitted to BWC. The agreement must state that the employer agrees to pay an advancement of wages or sick leave to the IW for a period up to 12 weeks closely following the date of injury or beginning of disability, unless special circumstances exist.

a.    Special circumstances include, but are not limited to the following:

i.    A clearly defined human resource policy/employee handbook policy; or

ii.   A bargaining unit contract. 

b.    The agreement must acknowledge that:

i.    The employer shall be reimbursed for wages or sick leave advanced to the IW up to the amount of TT paid to the IW over the same period in which the employer paid an advancement(s); and

ii.   BWC has the authority to send warrants for TT to the IW in care of the employer with instructions that the warrant(s) must be personally signed by the IW.

c.    BWC will not honor a sick leave buy back/wage agreement unless written notice of the agreement is signed by the employer and IW and filed with BWC within 30 days of the beginning date of payment to the IW.

d.    BWC must be notified in writing within 30 days of the end date of payment of wages, sick leave, or advancement.   

e.    Failure to comply with the terms of the agreement may result in BWC’s refusal to honor the terms of the agreement between the employer and the IW.

f.     BWC does not consider wage agreements the same as salary continuation.

6.    Volunteers

a.    A volunteer IW with no other employment is not entitled to TT as no loss of wages has occurred due to a work-related injury.

b.    BWC may pay TT when a volunteer IW has multiple jobs, one as a volunteer with no earnings and the other as an employee with earnings.

Example:  A volunteer firefighter also works as a mechanic at a local garage.  He/she suffers an injury and cannot work at either job.  TT may be payable.

 

  1. Issuing the TT Decision and Award 

1.    It is BWC’s policy to take one of the following actions:

a.  Allow TT;

b.  Deny TT if included on the initial allowance order; or

c.  Refer the issue of payment of TT to the IC if the request for TT is not part of the initial allowance order and there is a conflict.

2.    It is BWC’s policy to deny TT at the time of initial determination or refer to the IC subsequent to initial determination, any request for a back period of TT in excess of two years prior to the date of filing of the application requesting the TT award.

3.    Employer Certification and Payment of TT

a.    When the employer has certified a claim for payment of compensation, BWC may pay TT immediately upon the issuance of the BWC Order on initial determinations of the claim only.  BWC shall not hold payment for receipt of waivers or for expiration of the appeal period of the order.

b.    If a certified claim is changed over from medical only to lost time, and the initial allowance order has not yet been issued, it is BWC’s policy to pay TT without waiting for the expiration of the appeal period of the allowance order.

c.    When the claim is certified and BWC has issued an initial allowance order and subsequently receives a request for TT, if the request is made within the appeal period with no appeal filed, it is BWC’s policy to vacate the order and re-issue an order allowing payment of TT. BWC will then pay the TT immediately upon issuance of the re-issued initial allowance order.

d.    When certification is received after the initial allowance order is issued, it is BWC’s policy to pay TT when the certification is received if the appeal period has not yet expired.

4.    Initial TT Award/Decision  

a.If the claim is not certified, BWC will not pay TT until one of the following occurs:

                                  i.    The appeal period of the initial allowance order expires and no appeal is filed;

                                 ii.    Claim certification is received before the appeal period of the initial allowance order expires; or

                                iii.    The appropriate waivers are received.  For reference, see Orders, Waivers, Appeals, and Hearings policy.

b.    BWC may allow or deny a request for TT on the BWC Initial Allowance Order when issuing a decision for an initial award of TT at the same time as the initial claim allowance.

c.    When the initial request for TT is received after the claim is allowed, it is BWC’s policy to issue an order to award payment of TT when no conflict or dispute exists.  BWC will attempt to resolve conflicts or disputes to avoid holding an IC hearing to resolve the issue(s).  

d.    BWC will not deny a request for TT after the BWC Initial Allowance Order is issued, or when a conflict or dispute exists in the claim.

5.    Changing a Medical Only Claim to a Lost Time Claim and Paying TT

a.    When an allowed claim is changed over from a medical only claim to a lost time claim and TT needs to be addressed, BWC shall issue a subsequent BWC Order to address TT when no conflict exists.

b.    When TT compensation is granted on a subsequent BWC Order, BWC shall not pay TT until the appeal period expires and no appeal was filed, or until appropriate waiver(s) is received (see Orders, Waivers, Appeals, and Hearings policy and procedure), even if the claim was certified by the employer prior to issuing the order granting TT.

c.    When the claim is changed over and the allowance order from Medical Claims is still within the appeal period and no appeal has been filed, BWC may vacate the allowance order and issue a new order to allow the claim and payment of TT.

6.    TT Split among Multiple Claims – It is BWC’s policy to refer the issue to the IC when a request to split TT among multiple claims is filed.

7.    Paid vs. Considered - IC Order Language

a.    If the IC orders that TT shall be paid upon submission of supporting medical evidence and the evidence is received, BWC shall pay TT based on the IC Order.  A separate BWC Order granting TT is not necessary. 

b.    If the IC orders that payment of TT shall be considered upon submission of supporting medical evidence and the evidence is received, BWC shall issue a BWC Order granting TT or shall refer the request to the IC recommending denial of the request.    

 

F.    Special Considerations for Payment of TT

1.    Assault Leave

a.    When assault leave is paid according to a collective bargaining contract, the injured worker may be eligible to receive TT concurrently. 

b.    IWs must submit the actual collective bargaining contract for consideration.

2.    Seasonal Employees - An injured worker who was engaged in seasonal employment (e.g., construction, landscaping, farming) may continue to receive TT once his/her seasonal employment ends.

3.    Student Workers - An IW may attend school and receive TT if the injury prevents the IW from returning to his/her former position of employment, but does not prevent the IW from attending school.

4.    Teachers and Other School Employees

a.    In general, a teacher or other school employee is not entitled to receive wages and TT over the same period of time.  However, if a teacher or other school employee is deemed to be temporarily and totally disabled, but is receiving a portion of his/her pro-rated wages over the summer months for work performed during the school year (prior to the period of disability), TT may be payable with no offset. 

b.    A teacher or other school employee who has been unable to work during the 9-month academic year, and who is receiving his/her prorated wages, is not entitled to TT during the summer months unless he/she can prove his/her intent to work during the summer break by submitting evidence of one of the following: 

                                  i.        A job offer for that summer;

                                 ii.        A history of working at another job during the summer months;  or

                                iii.        A job search for summer employment performed prior to the injury. 

c.    Once BWC has determined that a teacher or other school employee is entitled to TT, payments may continue as long as the teacher or other school employee is unable to return to work at one of his/her former places of employment.

d.    If a teacher or other school employee has been receiving continuous TT, and is unable to work during the previous 9-month academic year as a result of the industrial injury, the teacher or other school employee is entitled to continue to receive TT during the summer months as long as the teacher is not receiving payment of any wages.

e.    If a teacher or other school employee has been receiving continuous TT

and is unable to work during the previous 9-month academic year as a result of the industrial injury, the teacher or other school employee is entitled to continue to receive TT during the summer months as long as the teacher or other school employee is not receiving payment of any wages.  

Example 1:  A teacher gets injured in May and is off work until August (a new school year begins in September).  The teacher continues to be paid wages over a pro-rated 12-month period and has never worked over the summer months.  The teacher is able to return to the teaching job once school resumes.  TT is not payable to the teacher during his/her period of disability (May-August) because he/she did not show intent to work over the summer months and there was no loss in earnings.

Example 2:  Same facts as example 1, but the IW has worked every summer for the last three years.  TT is payable to the teacher during his/her period of disability because he/she had a loss in earnings over the summer.

Example 3:  A teacher gets injured in November, is not paid anything under the teaching contract during the period of disability, and has received TT during the remainder of the school year.  The teacher is now applying for TT for the summer months.  TT is payable to the teacher for the summer months because he/she was unable to earn any wages during the school year and will not receive his/her regular pro-rated wages.    

 

G.   Subsequent TT Award/Decision

1.    If there is no dispute or conflict with the requested TT, it is BWC’s policy to generate a BWC Order outlining the TT award being granted in the following situations:

    1. The initial allowance decision in the claim is final; or
    2. BWC is paying TT after an interrupted, omitted, or extended period between TT payments, regardless of the period of time.

2.    It is BWC’s policy to pay TT when the appeal period expires with no appeal filed, unless appropriate waiver(s) is received (see Orders, Waivers, Appeals, and Hearings policy and procedure).

3.    BWC shall not issue an order for the continued or on-going payment of TT after TT has been initially awarded by order. 

4.    It is BWC’s policy to continue to pay TT and refer the issue of payment of ongoing TT to the IC for hearing when a conflict or dispute exists.  BWC does not have the authority to terminate TT when a conflict or dispute exists with ongoing payment.

5.    If BWC is recommending denial of payment of TT, it is BWC’s policy to obtain a physician file review or present exam findings to support denial of the request prior to IC referral.

6.    BWC will not consider a C-86 requesting payment of TT when a completed and signed C-84/equivalent form has not been submitted to support the request for TT on the C-86.    

                        a.    It is BWC’s policy to dismiss the C-86 if the completed and signed C-84/equivalent form is not received and payment of TT was the only issue requested on the C-86.

                        b.    If there are multiple issues on the C-86, it is BWC’s policy to refer the C-86 to the IC with the evidence for the other issue(s).

7.    When the IW has filed an Application for Compensation for Permanent Total Disability (IC-2) after BWC has made an MMI referral to the IC, the process to terminate TT due to a finding of MMI may continue. 

8.    BWC will continue to pay TT while the IW is receiving TT and an IC-2 is filed, unless the IW is found to have reached MMI.  Payment will continue with supporting medical evidence from the IW’s treating physician until there is an MMI finding or the IC makes a determination on the IC-2. 

    1. If the IC allows the IC-2, BWC will terminate TT as ordered by the IC.
    2. If an IC-2 is filed and/or is being processed by the IC and the evidence on file is from a physician other than the treating physician who indicates the IW has reached MMI, BWC may send the MMI issue to the IC while the IC-2 is still under consideration.
    3. If an IC-2 is filed and is being processed by the IC and BWC receives medical evidence from the treating physician indicating the IW has reached MMI, it is BWC’s policy to terminate TT as of the MMI date and not wait for a determination on the IC-2.

9.    If a claim is changed from a medical only claim to a lost time claim anytime following an initial decision (an order has been issued and is final), it is BWC’s policy to issue an order allowing payment of TT, and hold payment of TT until expiration of the appeal period of that order, even if the claim is certified, or until a waiver of the appeal period is received from the employer.

10.  When salary continuation has been paid previously, and TT is now payable, it is BWC’s policy to issue an order granting payment of TT.

 

H.   Paying TT - BWC will pay TT through the day before the actual or estimated return to work date. If no date is provided, BWC will contact the treating physician to obtain a date.

Example #1:  On the MEDCO-14, the treating physician lists a period of disability from 05/16/2012 to 05/30/2012 and lists an estimated return to work date of 05/31/2012.  TT is paid up to and including 05/30/2012.

            Example #2:  The IW’s actual return to work date is 05/31/2012.  TT is paid up to and including 05/30/2012.

 

  1. Medical Exams Impacting Ongoing TT

1.    It is BWC’s policy to schedule a 90-day exam and a 200-week exam as required by law.

2.    The employer of record or BWC may waive a 90-day exam.

a.    The waiver must be received in writing.

b.    BWC may waive the exam even if the employer indicates that the exam should proceed. 

3.    BWC may schedule the IW for an extent of disability exam anytime, when appropriate. If the IW fails to attend the exam, his/her TT may be suspended during the period of refusal. 

4.    For more information regarding exams, refer to BWC’s Independent Medical Examinations policy.

 

  1. TT and Concurrent Payments

1.    It is BWC’s policy to pay the following compensation types concurrently with TT when substantiated by supporting medical evidence:

a.    Scheduled Loss;

b.    Temporary Partial (TP) only if in a different claim involving different body parts and conditions;

c.    Facial Disfigurement (FD);

d.    Violation of Specific Safety Requirement (VSSR);

e.    Statutory Permanent Total Disability (PTD) only if the IW returned to work and had a new injury resulting in a new claim.  TT can be paid in the new injury claim concurrently with the Statutory PTD in the original claim; the TT for the new injury is not payable in the original claim;

f.     Percentage Permanent Partial (%PP) only when the %PP was paid first and the IW later requests TT over the same period in the same claim; or 

g.    TT in another claim, but only if paid as a split (i.e. one payment of TT is issued, but split between claims).

2.    It is BWC’s policy to prohibit payment of the following compensation types concurrently with TT in the same claim or in a different claim:

a.    Wage Loss (WL);

b.    Living Maintenance (LM);

c.    Living Maintenance Wage Loss (LMWL);

d.    Change of Occupation; or

e.    Permanent Total Disability (PTD), except Statutory PTD as noted above.

 

  1. Maximum Medical Improvement (MMI)

1.    It is BWC’s policy to issue a BWC TT Termination Order to terminate TT when the treating physician states or concurs with a finding of MMI and TT is being paid in the claim. 

2.    Medical evidence that has determined a condition is permanent may be sufficient to terminate TT if the IW has reached MMI.  When the treating physician indicates that the IW’s medical condition is not improving further, no other treatment options are feasible, and the condition has reached a level of permanency, this may be evidence that the IW has reached MMI and TT termination may be appropriate.  The treating physician’s report must strongly conclude that the IW has reached MMI in order for the report to support TT termination.  However, if the treating physician indicates that the IW’s condition is permanent, but is still responding to medical treatment and is improving, this is not evidence that the IW has reached MMI.  TT termination is not appropriate.

Example 1:

·         Right knee sprain/strain is allowed in an IW’s claim.

·         The IW is receiving treatment for the condition; however, a progress report recently submitted by the treating physician states that the IW is no longer benefitting from treatment, no other treatment options are viable, and the condition has become permanent.

·         The IW may have reached MMI and TT termination may be appropriate.       

Example 2: 

·         An IW has an amputation and permanent loss of the leg, but the IW’s condition is still improving with medical treatment. 

·         The IW’s condition is permanent, but has not reached a maximum level of medical recovery.

·         The IW has not reached MMI and TT termination is not appropriate. 

3.    When the treating physician submits a MEDCO-14/equivalent form and indicates the IW has reached MMI, the effective date of the termination is the date of the last examination, unless the treating physician specifies an MMI effective date.  It is BWC’s policy to pay TT through the day before the MMI effective date. 

Example:

·         The treating physician performs an exam on 10/01/2009.

·         The treating physician’s medical report dated 10/03/2009 states the IW is MMI, but an effective date is not given.

·         The effective date of the termination is 10/01/2009, the date of the treating physician’s medical exam.

·         TT is paid through 9/30/2009.

Example:

·         The treating physician indicates on the MEDCO-14/equivalent form that the IW has reached MMI on 10/1/2009.

·         The MMI effective date entered in the MMI section of the MEDCO-14 is the termination date.

·         TT is paid through 9/30/2009.

4.    When an IW is in a rehabilitation plan and the treating physician submits a MEDCO-14/equivalent form indicating the IW has reached MMI, compensation is not affected.  If the IW subsequently requests TT, the MMI finding may be sufficient for a referral to the IC if no new and changed circumstances exist.

5.    Before BWC refers a claim to the IC requesting TT termination based on a BWC exam with a finding of MMI, it is BWC’s policy to review the claim to determine the following:

e.    If any recent C-9s approving treatment could potentially affect the IME findings; and

f.     If the DEP physician was aware of the treatment being sought.  If there is treatment being sought that is not mentioned in the BWC exam report, it is BWC’s policy to obtain an addendum from the DEP physician. 

6.    When a BWC IME finds the IW has reached MMI, the effective date of the termination is the date of the IME with the treating physician’s concurrence or the specific date given by the treating physician.  It is BWC’s policy to pay TT through the day before the MMI effective date.

Example:

·          An IME is performed on 10/01/2013. 

·         The report dated 10/03/2013 states the IW has reached MMI.

·         The treating physician’s statement dated 10/15/2013 concurs that the IW has reached MMI, but an effective date is not given.

·         The effective date of the termination is 10/01/2013, the date the IME was performed.

·         Field staff will enter 10/01/2013 as the MMI date in the claims management system to pay TT up to and including 09/30/2013.

7.    When the treating physician gives a specific MMI date in the statement of concurrence with the IME results, the effective date of the termination is the MMI date indicated by the treating physician, regardless if the date is before or after the MMI date noted in the IME report. 

Example:

·         An IME is performed on 10/01/2013. 

·         The IME report dated 10/03/2013 states the IW has reached MMI.

·         The treating physician’s statement dated 10/15/2013 concurs with the MMI finding and provides an effective date of 10/16/2013.

·         The effective date of the termination is 10/16/2013, the date provided by the treating physician.

·         Field staff will enter 10/16/2013 as the MMI date in the claims management system to pay TT up to and including 10/15/2013.

8.    When TT has been terminated by the IC because the IW has reached MMI, it is BWC’s policy to terminate TT with an effective date of the date of the IC hearing at which the decision to terminate TT was made.

9.    BWC may consider payment of TT if a C-84/equivalent form is submitted subsequent to a BWC or IC finding of MMI.

a.    BWC may issue an order when the request for payment of TT is supported by medical evidence of new and changed circumstances and no conflict or dispute exists.  It is BWC’s policy to hold the order for the appeal period unless a waiver is received.

b.    It is BWC’s policy to refer the issue to the IC when the recommendation is to deny payment of TT. 

10.  When TT has been terminated by BWC due to a previous finding of MMI for a condition(s), and a C-84/equivalent form is submitted requesting TT for a different condition(s), it is BWC’s policy to consider payment of TT for the condition(s) that has not reached MMI.

 

  1. Terminating TT

1.    It is BWC’s policy to terminate TT without a hearing for any of the following reasons when no conflict or dispute exists:

a.   The IW returns to work;

b.    The IW’s treating physician has made a written statement that the IW is capable of returning to the former position of employment;

c.    The IW’s treating physician indicates the IW has reached maximum medical improvement (MMI); or

d.    The IW’s employer or another employer makes work available within the IW’s physical capabilities. 

i.      The job offer must be in writing.

ii.     The IW’s treating physician must be in agreement with the job offer.

2.    BWC shall terminate TT as of the date listed on the MEDCO-14 or medical documentation when the treating physician indicates that the IW has reached MMI.   

3.    BWC does not have the authority to deny or terminate TT when a conflict or dispute exists with the ongoing payment.

a.    If there is a conflict or dispute with the requested TT payment, the conflict/dispute shall be referred to the IC for hearing.  BWC shall attempt to resolve conflicts or disputes to avoid holding an IC hearing to resolve the issue(s). 

b.    A conflict or dispute regarding payment of compensation can be created by opposing medical opinions, or by any party to the claim, including BWC, objecting to the payment.

c.    When BWC is the party objecting to ongoing payment of TT, BWC must submit supporting evidence to support a referral to the IC (conflict or dispute) regarding the ongoing payment.

d.    It is BWC’s policy to refer an employer’s C-86 (with supporting evidence) objecting to ongoing payment of TT to the IC.  TT will continue to be paid with medical documentation supporting the disability until the IC issues a decision.

4.    The IC will decide the issue of terminating TT when a conflict or dispute exists.     

5.    According to IC Resolution R98-1-04, the appropriate date for termination of TT compensation when a conflict exists is the date of the IC hearing at which the decision to terminate TT was made.  However, the IC may determine another effective date of termination to be more appropriate (e.g., IC affirms BWC Order terminating TT when the treating physician provided an MMI date).

6.    Return to Work (RTW) – The effective date for termination is the actual date the IW returned to work.

Example:

·         The IW returns to work on 03/10/2013.

·         BWC receives notice that the IW has returned to work and terminates TT by letter dated 03/20/2013.

·         The effective date of termination is 03/10/2013 and TT is paid up to and including 03/09/2013.

7.    Treating Physician Releases the IW without Restrictions – The effective date of the termination is the date the treating physician releases the IW to return to work to his/her former position of employment.

8.    Treating Physician Releases the IW with Restrictions - When the treating physician releases the IW to return to work with restrictions, it is BWC’s policy to examine the evidence regarding the IW’s ability to perform the offered job.  BWC will refer conflicting evidence to the IC for hearing.

9.    Incarceration - BWC may terminate TT due to IW’s incarceration. For information regarding termination of TT due to incarceration, refer to the Incarceration policy & procedure.

 

M.   Suspending TT

1.    BWC will suspend TT when the IW:

                        a.    Fails to attend a medical examination or vocational evaluation;

                        b.    Refuses to submit a completed vocational questionnaire to BWC or the IC within 30 days after BWC or the IC mails the request to complete the questionnaire;

                        c.    Refuses to submit to any employer-initiated examination, without good cause; or

                        d.    Refuses to release any medical information, record, or report that is required to be released and involves an issue pertinent to the alleged condition. 

  

11.  Reinstating TT

1.    Reinstating Terminated TT          

a.The termination of TT, whether by BWC Order, IC Order or court order, does not preclude the commencement of TT at another point in time if the IW becomes temporarily and totally disabled, unless TT is forever barred by the IC or the IW has voluntarily abandoned the work force.

b.    If the IW becomes eligible to receive TT after termination, TT will be reinstated with supporting factual and medical evidence after an order to grant payment of TT has been issued and approved.

2.    Reinstating Suspended TT – BWC will reinstate TT when:

                        a.    BWC receives notification that the IW has appeared for the examination or vocational evaluation; or

                        b.    The IW submits a completed vocational questionnaire or releases required medical information. 

3.    Reinstating TT after a Period of Incarceration

a.    If TT is being considered after a period of incarceration has ended, payment may begin on the date the IW is first seen by the treating physician following the period of incarceration.  

                                          i.    Supporting evidence must be submitted.

                                         ii.    The IW may be examined to determine his/her extent of disability. 

b.    Payment of TT will not begin on the date the IW was released from confinement, unless it is the same date that the IW was first seen by his/her treating physician.  Supporting evidence must be submitted.

 

 

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

 

 

 

 

 

 

 


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