Skip Navigation Links.
Online Support available
Monday through Friday
7:30 a.m. - 5:30 p.m.
Click here to get help!
OhioBWC - Basics: (Policy library) - File

Policy Name:

WAGE LOSS COMPENSATION

Policy #:

CP-23-02

Code/Rule Reference:

R.C. 4123.56; R.C. 4123.68; O.A.C. 4125-1-01

Effective Date:

11/24/15

Approved:

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

Origin:

Claims Policy

Supersedes:

05/19/15; Wage Loss Compensation policy CP-23-02 dated 01/13/15.

History:

New 01/13/15; 05/19/15

Review date:

11/24/20

 

 

      I.        POLICY PURPOSE

 

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.

 

    II.        APPLICABILITY

 

This policy applies to Field Operations staff.

 

   III.        DEFINITIONS

 

Broken Period of Wage Loss: 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 request).

 

Closed Period of Wage Loss: A specific period of WL paid in the past.

 

Good Faith Job Search: An IW’s consistent, sincere and best attempts to obtain suitable employment that will eliminate a loss in wages.

 

Living Maintenance 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 presumption that:

·         IW’s engaged in self-employment  have a gross income of at least fifty percent of the statewide average weekly wage; and

·         Earnings from paid leave provided by the employer will be included in present earnings.

 

Public Work-Relief Employee: 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, including:

·         Non-working wage loss (NWWL) – when the IW has not returned to work because he or she has been unable to find suitable employment;

·         Working wage loss (WWL) – when the IW has returned to employment which is not his or her former position of employment.

 

Wage Replacement Compensation: Compensation 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.

 

  IV.        POLICY

 

A.    Eligibility

1.    It is the policy of BWC to provide WL compensation to an IW (unless exempted as detailed in section IV.A.4) who:

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 above.

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 and Diseases

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:

a)    cardiovascular;

b)    pulmonary; or

c)    respiratory conditions; or

ii.     IWs other than firefighters or police officers, who have:

a)    silicosis;

b)    coal miners’ pneumoconiosis (black lung); or

c)    asbestosis.

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 employment; or

c.    LMWL: See the Living Maintenance Wage Loss policy for information on this type of compensation.

 

B.    Choice of Compensation

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 for NWWL.

2.    An IW that is eligible for LMWL or WWL has the choice of which type of compensation to request.

 

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 of residence;

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:

i.        specific 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 medical examination;

vii.    the date of the report;

viii.   the name of the physician who authored the report; and

ix.     the physician’s signature.

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 IC.

5.    If the IW files for WL in multiple claims, BWC will refer the request to the IC for determination.

 

E.    Calculation of Benefits

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 employment.

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 wage.

3.    Other Benefits

a.    Social security benefits and unemployment benefits are not considered wages or present earnings and do not reduce WL benefits.

i.        BWC 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 Suitable Employment: 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;

i.        The IW is required to notify BWC when there is a significant and unusual variation in wages.

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.

i.        Temporary 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 date.

ii.       Permanent 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 report.

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 is applicable.

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 documentation. 

 

G.   Duration

1.    Date of injury on or after 08/25/2006:

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.

Example:

·            The IW receives NWWL for 30 weeks, and then gets a job.

·            On the job, the IW still suffers a wage loss and receives WWL.

·            Twenty-six (26) weeks of the IW’s 30 weeks of NWWL is excluded from the 200-week WL maximum.

·            The 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 to 08/25/2006:

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 Treatment - 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

i.        If 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 to:

a)    Retirement;

b)    Incarceration; or

c)    Discharge for just cause.

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.

b.    Involuntary 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 Requirements

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; or

d.    the IW is working and BWC determines, due to the totality of the circumstances that a job search is not necessary. 

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 shall include:

a.    The name and address of each employer contacted;

b.    The employer’s telephone number;

c.    The position sought;

d.    A reasonable identification by name or position of the person contacted;

e.    The date and method of contact;

f.     For on-line job searches, a copy of the on-line posting and verification of the application submission;

g.    The result of the contact; and

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 conditions;

g.    The IW’s restrictions;

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 employment;

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 transportation;

ii.     Internet services;

iii.    telephone service; and

iv.   any other means of communication;

j.      The self-employed IW’s documentation of efforts undertaken on a weekly basis to produce self-employment income;

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 faith include:

a.    Whether the employment offer meets the definition of “suitable employment” i.e. “within the IW’s restrictions…”

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 Other Compensation

1.    Wage Replacement Compensation:

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.

2.    Awards:

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, and

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.


Resources