I. POLICY PURPOSE

The purpose of this policy is to ensure that BWC appropriately processes VSSR applications to transfer to the Industrial Commission of Ohio (IC), investigates allegations of VSSRs when requested to do so and executes an IC order when the IC determines a VSSR has occurred.

II. APPLICABILITY

This policy applies to Field Operations staff and the Safety Violations Investigation Unit (SVIU).

III. DEFINITIONS

Civil penalty: a fine, separate from the VSSR award, levied against the employer and generally punitive in nature.

Client-Employer: for purposes of this policy, a client-employer is the employer to whom a worker was assigned by a temporary agency (not a professional employer organization) and that controls the actual place of employment or work site including, but not limited to, the labor, safety devices, safeguards and other means of protection for the workers, who may or may not be actual employees, as defined in R.C. 4123.01.

Violation of a specific safety requirement: for purposes of this policy, violations of labor, safety devices, safeguards, or other means or methods of protection adapted to render the employees of every employment and place of employment and frequenters of every place of employment safe, or violations that fail to enforce reasonable orders for the adoption of the above.

IV. POLICY

A.    It is the policy of BWC to process applications for VSSR by ensuring the IC receives VSSR applications filed directly with BWC, investigating the VSSR when the IC requests, and executing any order when the IC determines a VSSR has occurred.

B.    VSSR Awards:

1.    Attach to any type of compensation paid to the IW;

2.    Are paid from the Surplus Fund;

3.    Are direct-billed to the employer for Surplus Fund reimbursement, unless the employer settles the VSSR liability; and,

4.    Are not included in the employer’s experience.

C.   Applications for VSSR

1.    Injured workers (IW) or claimants seeking a VSSR award should complete an Application for Additional Award for Violation of Specific Safety Requirement in a Workers’ Compensation Claim (IC/ 8-9).

2.    An IW or claimant must file an IC-8/9 within two years of the date of injury, death or disability caused by an occupational disease.

3.    An IC-8/9 may be filed with BWC, but the Industrial Commission (IC) has jurisdiction over the application and determination process.

4.    Amendments to Applications

a.    An IW or claimant may amend the application to include an additional or alternative violation.

b.    Time Requirements for Amendments

i.      Amendments to the application must be filed within two years of the date of injury, death or disability caused by occupational disease.

ii.     An IW or claimant may file an amendment beyond two years from the date of injury, disability or death, only if the request is:

a)    Made within 30 days of the IW’s, claimant’s, or IW or claimant representative’s receipt of BWC’s report of investigation; and

b)    Is only a clarification of the previously alleged violation(s) and not a new allegation.

D.   VSSR Investigation

If the IC determines that additional investigation is needed, the IC may notify the BWC SVIU. The SVIU will conduct an impartial investigation.

1.    BWC SVIU will:

a.    Notify parties of the investigation in writing;

b.    Complete an impartial investigation; and

c.    Submit a Report of Investigation to the IC.

2.    SVIU may discontinue an investigation for the following reasons:

a.    The IC grants an abeyance period at the request of all parties;

b.    The parties voluntarily settled the application;

c.    The IW withdraws the application.

3.    The IC is responsible for sending copies of the report to the parties, and the parties have 30 days to review and provide supplemental information to the IC, or request an extension. In addition, the IC may hold a pre-hearing conference to review information, discuss settlement possibilities or set a date for a merit hearing. Parties should refer to the Industrial Commission website for further direction regarding VSSR hearings.

E.    Calculating a VSSR Award

1.    The VSSR award is based on the maximum statewide average weekly wage (SAWW) in effect on the date of injury (DOI), and the percentage of the award is determined by the IC in an amount between 15 and 50 percent.

2.    BWC uses the following formulas to calculate a VSSR:

a.    For percent permanent partial (%PP) awards: VSSR% x 1/3 maximum SAWW x weeks = Award which is the maximum rate for %PP listed on the rate chart under PP “A”.

Example: IW is granted a 4%PP award, equating to 8 weeks of compensation. The IW was also granted a 40% VSSR award. The SAWW %PP max is $279.33. Take 40% x $279.33 x8 = $893.94.

b.    For all other awards that do not have a maximum statutory limit (including death claims): VSSR% x Maximum SAWW = Award that is the weekly rate.

Example: IW died in 2013, with a maximum death rate of $837. The IC grants a 40% VSSR award. Take 40% x $837 = $334.80.

c.    For awards with a maximum statutory limit (e.g., facial disfigurement, scheduled loss): VSSR % x maximum award allowable by law, regardless of the actual amount of the award. The maximum depends on the DOI.

i.      Example:  Facial disfigurement award with a DOI on or before 6/29/2006 has a maximum award of $5000. The IC issued a 40% VSSR award. The IW actually received a $3000 facial disfigurement award. The calculation is 40% x $5000, equaling a VSSR payment of $2000.

ii.      Example: Facial disfigurement award with a DOI on or after 6/30/2006 has a max award of $10,000. The IC issued a 40% VSSR award. The IW actually received a $3000 facial disfigurement award. The calculation is 40% x $10,000, equaling a VSSR payment of $4000.

F.    Paying a VSSR Award

1.    VSSR awards are paid based on the compensation previously and/or currently awarded to the IW.

a.    When an IW receives a VSSR award in a claim that the IW is not currently receiving compensation, the VSSR is applied to all previously paid compensation on that claim.

b.    When the IW has not received any compensation in a claim, the VSSR will be applied to any compensation the IW is awarded in the future.

c.    VSSR awards do not attach to any employer-incentive compensation paid to the employer (e.g., gradual return to work incentive, on-the-job-training).

2.    The VSSR award may be larger than the actual award of compensation being paid in the claim.

3.    VSSR awards are paid concurrently with the compensation the IW or dependent is receiving from a claim at the time the award is granted.

4.    If a VSSR award is made in a claim where the employer is or was paying salary continuation, BWC will calculate the VSSR award based on the SAWW for the period of time BWC would have paid TT to the IW.

5.    BWC will release VSSR payments when compensation is paid to the IW.

a.    However, in limited and extenuating circumstances, BWC may release a payment in another manner (e.g., lump sum) on a case-by-case basis.

b.    BWC will consider the following when determining whether it can pay pursuant to IV.F.4, above:

i.      Impact to the IW;

ii.     Impact to the employer;

iii.    Administrative costs in executing payments to the IW.

6.    BWC will not issue the initial VSSR award payment until at least 30 days after the IC Order is issued to ensure a request for rehearing is not filed.

G.   Holding or Stopping Payment of a VSSR Award

BWC will hold or stop payment of a VSSR when:

1.    A request for rehearing is pending with the IC;

2.    The BWC receives notice that the parties are settling the claim in which the VSSR is being paid (Refer to the Lump Sum Settlement  policy); or

3.    The BWC receives notice that the parties are settling liability for the VSSR award in the claim, but not the source claim itself (Refer to the Lump Sum Settlement policy).

H.   VSSR Awards in claims where a temporary agency is the employer

1.    The Industrial Commission may differentiate liability between the temporary agency employer and the client-employer. While an IW may be deemed the employee of a temporary agency, for purposes of a VSSR award or for any penalty assessments, the IC may, and most likely will, designate the client-employer as liable rather than the temporary agency.

2.    If the Industrial Commission deems the client-employer liable, the client-employer’s policy will be charged for the VSSR award and any penalties, if applicable.

3.    If an IW is receiving compensation in the claim, BWC will issue two separate payments:

a.    One check for the claim benefits, billed to the temporary agency; and

b.    One check for the VSSR award, billed to the client-employer.

I.      VSSR Overpayments

1.    IC declares an overpayment

a.    If an IW is found overpaid on any type of compensation for which a VSSR award was also paid, the VSSR payments, as well as the compensation payments, are an overpayment.

b.    VSSR overpayments shall be collected at 100% from future VSSR awards, including VSSR awards in other claims the IW has.

c.    The IC does not have to declare the VSSR award as overpaid if it has declared the compensation overpaid.

d.    Overpayments are collected in accordance with 4123.511 (K).

2.    Court overturns VSSR

a.    When a court overturns an IC decision to pay a VSSR, BWC shall not recoup the resulting overpayment from the IW.

b.    Overpayments resulting from court decisions are charged to the State Insurance Fund’s surplus account.

J.    If an IW settles an employer’s VSSR liability and then the IW subsequently dies, the dependents do not have entitlement to a VSSR award even if death benefits are awarded.

BWC staff may refer to the corresponding procedure for this policy entitled “Violation of Specific Safety Requirement” for further guidance.