4123.56; R.C. 4123.68; O.A.C. 4125-1-01
Percy, Chief of Operational Policy, Analytics & Compliance (Signature on
Wage Loss Compensation policy CP-23-02 dated 01/13/15.
The purpose of this
policy is to ensure that BWC makes a proper determination regarding payment of wage
loss compensation (WL) to an injured worker (IW) who suffers a reduction in earnings
as a direct result of an allowed condition in a claim.
This policy applies
to Field Operations staff.
Broken Period of Wage
A period of WL after there has been an interruption in WL payments due to
ineligibility (including extended periods when the IW failed to submit a
Closed Period of Wage
specific period of WL paid in the past.
Good Faith Job
IW’s consistent, sincere and best attempts to obtain suitable employment that
will eliminate a loss in wages.
Wage Loss (LMWL): Compensation
that may be provided when the IW has completed an approved vocational
rehabilitation plan, successfully returned to work within sixty (60) days of
closure of the plan, and experiences a loss in wages while employed as a
consequence of the physical and/or psychiatric limitation resulting from the
allowed conditions in the claim. See the Living Maintenance Wage Loss policy
for detailed information on this type of compensation.
Ongoing Requests for Wage Loss: Continual requests
made after an award of WL, without a break.
Present Earnings: An IW’s actual weekly
earnings which are generated by gainful employment; or if self-employed, the
IW’s gross income minus business-related expenses. It is a rebuttable
engaged in self-employment have a gross income of at least fifty percent of
the statewide average weekly wage; and
from paid leave provided by the employer will be included in present earnings.
A person engaged in any service or labor, under the supervision and control of
a government body, either directly or through agencies, in exchange for some
form of public funds or goods, on the basis of the budgetary needs of the work-relief
employee and his or her dependents.
Scheduled Loss: An award pursuant
to R.C. 4123.57(B) made to an IW for the amputation of, or loss of use of, a
body part, or a facial disfigurement.
Suitable employment: Work which is
within the IW’s restrictions, and which may be performed by the IW subject to
all physical, psychiatric, mental and vocational limitations to which the IW
was subject on the date of the injury, or on the date of disability in
occupational disease claims.
Wage Loss: The dollar amount
of the diminishment of wages sustained by an IW as a direct result of physical
and/or psychiatric restriction(s) caused by the allowed condition in the claim,
wage loss (NWWL)
– when the IW has not returned to work because he or she has been unable to
find suitable employment;
wage loss (WWL)
– when the IW has returned to employment which is not his or her former
position of employment.
intended to replace an IW’s earnings. This includes temporary total, living
maintenance, living maintenance wage loss, wage loss (working and non-working),
permanent total disability and salary continuation.
1. It is the policy of
BWC to provide WL compensation to an IW (unless exempted as detailed in section
a. Has a date of injury
on or after 08/22/1986;
b. Has returned to
employment other than the IW’s former position of employment or has been unable
to find employment consistent with the IW’s disability;
c. Experiences a reduction
of earnings; and
d. Has the reduction in
earnings as a direct result of physical and/or psychiatric restrictions caused
by the allowed conditions in a claim.
2. An IW that is or was
self-employed may be eligible for WL if the IW meets the eligibility criteria
3. An employer may not
pay salary continuation in lieu of
WL but may choose to pay the IW full wages.
4. Exempted IWs - Occupations
a. IWs with the following
occupations and/or diseases are not eligible for WL, but may be eligible for
change of occupation benefits:
i. Firefighters (paid or
volunteer) and police officers whose claims are allowed for:
b) pulmonary; or
c) respiratory conditions;
ii. IWs other than firefighters
or police officers, who have:
b) coal miners’
pneumoconiosis (black lung); or
b. See the Change of
Occupation policy for more information.
5. Types of wage loss
compensation - BWC may provide an eligible IW:
a. WWL: payable when the IW
returns to employment or has remained at work following an injury but suffers a
loss in wages due to different job duties, less hours or other circumstances
resulting from the related restrictions; or
b. NWWL: payable when the IW is
released to return to work with restrictions, but is unable to find suitable
c. LMWL: See the Living
Maintenance Wage Loss policy for information on this type of compensation.
B. Choice of
1. An IW receiving temporary
total compensation (TT) who is released to return to work with a restriction
that cannot be accommodated by the employer and who has not been found to have
reached maximum medical improvement (MMI) may choose to remain on TT or to file
2. An IW that is
eligible for LMWL or WWL has the choice of which type of compensation to
C. Application for WL
1. To be considered for WL
an IW must:
a. File with BWC (or the
employer if the employer is self-insuring) an Initial Application for Wage
Loss Compensation (C-140) or an equivalent form;
b. Provide a copy of the
application and supporting documentation to the employer of record (EOR) at the
time of filing, unless the EOR is out of business;
c. Show that the IW
sought suitable employment with the EOR at the onset of the first period of WL
unless the IW establishes that seeking such employment would be futile (e.g.,
the IW was discharged or the EOR is out of business);
d. If the IW is requesting
NWWL, provide proof of registration with the Ohio Department of Job and Family
Services, or if the IW is out of state, an equivalent agency in the IW’s state
e. Certify by signature
that all the information being provided on the application is true and accurate
to the best of the IW’s knowledge, and that the IW served a copy of the
application with copies of supporting documentation to the EOR;
f. Indicate the type of
WL being requested;
g. Provide the IW’s
employment history, including a description of each position held;
h. Submit a medical
report that contains documentation of restrictions caused by the allowed
conditions in the claim, which includes:
identification of any restrictions which are a direct result of the allowed
conditions in the claim;
ii. a statement of
whether those restrictions are temporary or permanent;
iii. when the restrictions
are temporary, the expected duration of those restrictions (temporary
restrictions cannot be certified for a period to exceed 90 days without a new
examination of the IW);
iv. when the restrictions
are permanent, affirmation that the report is based on an examination or
treatment conducted within 90 days prior to the initial date of WL requested;
v. a separate statement
of any other restrictions not related to the allowed condition(s);
vi. the date of the last
vii. the date of the
viii. the name of the
physician who authored the report; and
ix. the physician’s
i. Perform a good faith
job search as required in Section IV.I.
D. Determinations and
Notice of Referral to the Industrial Commission (IC)
1. Prior to making a
determination on the WL request, BWC may perform an independent medical
examination to further evaluate the work restrictions the injured worker’s
physician has submitted.
2. BWC will make a
determination on the IW’s request for WL in all State Fund claims no later than
30 calendar days after receipt of the application.
3. If the WL request is
approved, BWC will issue an order indicating such.
4. If BWC does not
approve the WL request as submitted, BWC will issue a notice of referral to the
5. If the IW files for
WL in multiple claims, BWC will refer the request to the IC for determination.
E. Calculation of
1. Basic Calculation: WL will be
calculated on a weekly basis and paid at sixty-six and two-thirds percent (66
2/3%) of the difference between the IW’s average weekly wage (AWW) or full
weekly wage (FWW), whichever applies based on date of injury or disease, and
the IW’s actual weekly present earnings.
a. For all claims with a
date of injury/date of disease before 05/15/97, the WL calculation is based on
the greater of the IW’s AWW or FWW.
b. For all claims with a
date of injury/date or disease on or after 05/15/97, WL compensation is based
on the IW’s AWW.
2. Present earnings:
a. Present earnings
include commission sales, bonuses, gratuities, and all other forms of compensation
for personal services customarily received by an IW in the course of
b. In instances where
compensation is not paid on a weekly or biweekly basis, their receipt will be
apportioned over the number of weeks it is determined were required to initiate
and consummate the sale or earn the bonus, gratuity, or other compensation.
c. If the IW is
self-employed, the IW’s actual weekly present earnings are considered the IW’s
gross income, less any business expenses not already accounted for in the gross
income. There is a rebuttable presumption that a self-employed IW has a gross
income of at least fifty-percent (50%) of the current statewide average weekly
3. Other Benefits
a. Social security
benefits and unemployment benefits are not considered wages or present earnings
and do not reduce WL benefits.
does not reimburse Ohio Job and Family Services when WL and unemployment
benefits are paid over the same period.
ii. See the Ohio
Department of Job and Family Services (ODJFS) Reimbursement and Claim
Adjustment policy for further information about ODJFS reimbursement.
b. If an IW is receiving
non-occupational accident and sickness insurance payments pursuant to an
insurance policy or program fully funded by the EOR, those payments will be
considered wages or present earnings and will offset WL.
c. WL is not reduced by
any monies received from public work relief.
d. It is the IW’s
responsibility to accurately report WL benefits to other entities the IW is
receiving benefits from.
4. Good Faith Offer of
If it is determined by the IC an IW voluntarily failed to accept a good faith
offer of suitable employment, WL will be calculated at 66 2/3% of the
difference between the IW’s AWW or FWW, whichever is applicable, and the weekly
wage the IW would have earned in the employment the IW failed to accept.
5. Voluntarily Limiting Hours: If it is determined
by the IC an IW voluntarily limited the number of hours he or she works each
week, WL will be calculated at 66 2/3% of the difference between the IW’s AWW
or FWW, whichever is applicable, and the weekly wage the IW would have earned
if the IW had not voluntarily limited the number of hours he or she works.
F. Ongoing WL Requests
1. An IW may continue to
receive WL (ongoing WL) after the initial award when the IW provides
documentation to support such payment. Required documentation includes:
a. For WWL, wage
statements or other proof of earnings;
IW is required to notify BWC when there is a significant and unusual variation
ii. Additional wage
documentation must be provided, as requested.
b. Proof of any required
job search; and
c. Medical reports providing
proof of the ongoing status of the IW’s physical and/or psychiatric restrictions
due to the allowed conditions in the claim.
Restrictions - Medical reports cannot be certified for a period to exceed 90 days
without a new examination of the IW. Restrictions are certified as of the exam
Restrictions – Ongoing medical documentation is not required for permanent
restrictions however, BWC may request an exam and/or an updated medical report
addressing permanent restrictions when the situation warrants. Updated medical
reports must be submitted to BWC within 90 days of the request for the updated
2. WL is considered
ongoing even when WL periodically is equal to zero dollars ($0) for specific
weeks because the IW’s earnings were equal to or higher than the AWW or FWW, whichever
3. When an IW’s WL has
ceased to be ongoing (because the IW is no longer eligible), and subsequently
the IW seeks WL again, the IW must submit a new application and supporting
1. Date of injury on or
a. An IW may receive up
to a maximum of 200 weeks of WL (subject to the provision for NWWL) in a claim.
b. LMWL is included when
calculating the total number of weeks of WL.
c. NWWL is limited to a
maximum of 52 weeks, however the first 26 weeks of NWWL are excluded from the
200 week WL limitation.
IW receives NWWL for 30 weeks, and then gets a job.
the job, the IW still suffers a wage loss and receives WWL.
(26) weeks of the IW’s 30 weeks of NWWL is excluded from the 200-week WL
IW may receive up to 196 weeks of WWL (30 weeks NWWL - 26 excludable weeks of
NWWL = 4 weeks counted towards the 200 weeks maximum for WL = 196 remaining
weeks of WL available).
d. Only weeks the IW
receives a WL payment will be counted towards the maximum number of weeks the
IW may receive WL. For example, one week the IW’s earnings may be enough that
there is no calculable WL. That week would not count towards the maximum number
of weeks WL is payable.
2. Date of injury prior
a. An IW may receive up
to a maximum of 200 weeks of WL.
b. If LMWL was paid in
the claim and then NWWL or WWL approved, the weeks of LMWL will not count
towards the 200 weeks of NWWL and/or WWL.
c. If NWWL and/or WWL is
paid in a claim and then LMWL is approved, the total number of weeks NWWL and
WWL will be deducted from the 200 weeks of LMWL that may be paid.
H. Special Circumstances
1. WWL for Periods of
- An IW may be eligible for WWL when the IW experiences a reduction in pay due
to missing work:
a. for medical treatment
related to the allowed conditions in the claim; and
b. the treatment cannot
be obtained outside of work hours;
c. the treatment is
medically necessary for the IW to perform his or her job; and
d. the IW could not
continue to work full-time without the treatment.
2. Separation from
Employment and Off-Work Periods
a. Voluntary separation
the IW voluntarily separates from employment for which WWL is being paid, for
reasons unrelated to the allowed condition(s) in the claim the IW ceases to be
eligible for any type of WL. These circumstances may include, but are not limited
b) Incarceration; or
c) Discharge for just
ii. The IW that
voluntarily separates from employment may later become eligible for WWL, if the
IW subsequently returns to work and experiences a reduction of earnings as a
direct result of physical and/or psychiatric restrictions caused by the allowed
conditions in the claim.
separation - Separation
from employment due to actions on the part of the employer, such as a lay-off, is
not considered voluntary on the part of the IW and the IW may retain
eligibility for WL.
I. Job Search
1. Subject to the
exceptions listed below, an IW applying for WL is required to perform a good
faith job search.
2. WL may be payable,
but a job search is not required when:
a. the IW returns to
alternative employment with the same employer;
b. the IW returns to
alternative employment with another employer at the direction of the EOR;
c. the IW is receiving
public relief and defined as a work-relief employee pursuant to R.C. 4127.05;
d. the IW is working and
BWC determines, due to the totality of the circumstances that a job search is
3. The IW must supplement
his or her WL application with a Wage Loss Statement for Job Search (C-141)
form(s) or equivalent form(s) describing the search for suitable employment for
each week WL is requested.
4. If the IW is seeking WL
for periods after the filing of the application (ongoing WL), the IW must
submit a C-141 or equivalent form(s) for every week requested. The form(s) must
be submitted at least every four weeks.
5. Job search statements
a. The name and address
of each employer contacted;
b. The employer’s
c. The position sought;
d. A reasonable
identification by name or position of the person contacted;
e. The date and method
f. For on-line job
searches, a copy of the on-line posting and verification of the application
g. The result of the
h. Any other information
requested by BWC.
6. The IW may first
search for suitable employment that is within the IW’s skills, prior employment
history, and educational background.
If, within 60 days
from the beginning of the IW’s job search, he or she is unable to find
employment, the IW shall expand his or her job search to include entry level
and/or unskilled employment.
7. Factors that shall be
considered to determine if the IW has made a good faith job search include:
a. The IW’s skills,
prior employment history, and educational background;
b. The number, quality
and regularity of contacts made by the IW with prospective employers, and/or
public and private employment services;
c. The amount of time
devoted to making prospective employer contacts;
d. For an IW receiving
WWL, the number of hours the IW is working;
e. Any refusal of the IW
without good cause to accept employment seeking assistance from BWC, or free of
charge assistance from any public or private entity;
f. Labor market
g. The IW’s
h. Any recent activity
of the IW to change his or her place of residence and the impact such a change
would have on the reasonable probability of success in the search for
i. The IW’s economic
status as it impacts his or her ability to search for employment, including
such things as access to:
i. public and private
ii. Internet services;
iii. telephone service; and
iv. any other means of
j. The self-employed
IW’s documentation of efforts undertaken on a weekly basis to produce
k. Any part-time
employment engaged in by the IW and whether that employment constitutes a
voluntarily limitation on the IW’s present earnings;
l. Whether the IW is
only seeking employment that would require him or her to work fewer hours per
week than worked in the former position of employment;
m. Whether the IW, due
to the restrictions from the allowed conditions in the claim, is enrolled in a
rehabilitation program with the Opportunities for Ohioans with Disabilities
(OOD) agency and is attending an education institution approved by OOD.
J. Good Faith Job Offers
1. The failure of an IW
to accept a good faith job offer of suitable employment may be considered as a
reason to deny, reduce or terminate WL.
2. Factors that will be
considered in determining if the IW was offered suitable employment in good
a. Whether the
employment offer meets the definition of “suitable employment” i.e. “within the
b. If the offer of
employment is made by the EOR, the offer is:
i. in writing, and
ii. contains a reasonable
description of the job duties, hours and rate of pay;
c. Whether, compared to
the IW’s former position of employment, the offer requires the IW to work
significantly more hours per week than the former position of employment;
d. Whether the offer
requires the IW to work a shift(s) different from the shift(s) the IW was
working at the time of injury; and
e. Whether the offer
requires the IW to relocate.
K. Concurrency of WL and
1. Wage Replacement
a. An IW may only
receive one type of wage replacement compensation (i.e., WL, TT, PTD) at a time.
They are not payable concurrently (e.g., an IW may receive LMWL or WL, but not
both at the same time).
b. WL can be paid
concurrently in two different claims if ordered by the IC for split payment.
a. WL and scheduled loss
are payable concurrently in one or more claims.
b. WL and percentage of
permanent partial (%PP) are payable concurrently:
i. in different claims,
ii. in the same claim if
the %PP award is granted first and WL is subsequently awarded.
BWC staff may refer
to the corresponding procedure for this policy entitled “Procedure for Wage
Loss Compensation” for further guidance.