OhioBWC - Basics: (Policy library) - File

Policy and Procedure Name:

Incarceration

Policy #:

CP-09-06

Code/Rule Reference:

R.C. 4123.54(J)

Effective Date:

09/21/20

Approved:

Ann M. Shannon, Chief of Claims Policy and Support

Origin:

Claims Policy

Supersedes:

Policy #CP-09-06 and Procedure #CP-09-06PR.1, effective 09/29/17.

History:

Previous versions of this policy are available upon request


 

Table of Contents

 

I. POLICY PURPOSE

II. APPLICABILITY

III. DEFINITIONS

Conviction

Incarceration

Time served

IV. POLICY

A.          Compensation and Benefits

B.          Applicable Dates

V. PROCEDURE

A.          General Claim Note and Documentation Requirements

B.          Investigating Allegations of Incarceration/Conviction

C.         Reviewing the Results of the Investigation

D.         Determining Impact to Compensation and Benefits

E.          Setting Wages

 

 


 

I. POLICY PURPOSE

 

The purpose of this policy is to ensure BWC properly terminates the payment of compensation and benefits when the injured worker (IW) or a dependent is incarcerated and properly reinstates the payment of compensation, when appropriate, after the IW or dependent is released from incarceration. 

 

II. APPLICABILITY

 

This policy applies to all claims services staff and Special Investigations Unit staff. 

 

III. DEFINITIONS

 

Conviction: The act of finding a person guilty of a crime in a court of law.

 

Incarceration: Confinement in a penal institution, including municipal, county, state and federal jails or prisons. Incarceration does not include any time the individual is not actually confined, such as a period while the individual is released on bond or bail pending a trial date or on appeal.

 

Time served: Period of confinement prior to a conviction that is applied by the court to the sentence to reduce the period of confinement after conviction.

 

IV. POLICY

 

A.     Compensation and Benefits

1.     It is the policy of BWC to determine whether compensation and benefits are payable in a claim when an injured worker (IW) or dependent is incarcerated.

2.     For all dates of injury, the employer of record may discontinue payment of salary continuation during the period the IW is incarcerated in any county, state or federal institution in this or any other state due to a conviction for violation of a state or federal law. The employer of record may resume payment of salary continuation upon release if the IW remains an employee.

3.     If the IW or dependent was in a repayment plan for a lump sum advancement prior to termination of compensation due to incarceration, the repayment period will resume when BWC reinstates payment of compensation.

 

B.     Applicable Dates

1.     For claims with a date of injury prior to 8/22/86 it is the policy of BWC to consult with a BWC attorney about payment of any type of compensation and benefits  to an IW when the IW is incarcerated.

2.     For claims with a date of injury on or after 8/22/86 through 9/28/17: It is the policy of BWC to terminate, or in the case of PTD, refer to the Industrial Commission (IC) for termination, compensation and benefits to an IW, when the IW is:

a.     Incarcerated in any state or federal correctional institution, or in any county jail in lieu of incarceration in a state or federal correctional institution, whether in this state or any other state; and

b.     The incarceration is due to a conviction of a violation of a state or federal criminal law.

3.     For dates of injury on or after 9/29/17: It is the policy of BWC to terminate, or in the case of PTD, refer to the IC for termination, compensation and benefits to an IW or a dependent, when the IW or dependent is:

a.     Incarcerated in any state or federal correctional institution, or in any county jail in lieu of incarceration in a state or federal correctional institution, whether in this state or any other state; and

b.     The incarceration is due to a conviction of a violation of a state or federal criminal law.

 

V. PROCEDURE

 

A.     General Claim Note and Documentation Requirements

1.     BWC staff shall refer to the Standard Claim File Documentation and Altered Documents policy and procedure for claim note and documentation requirements; and

2.     Shall follow any other specific instructions for claim notes and documentation included in this procedure.

 

B.     Investigating Allegations of Incarceration/Conviction

1.     In all claims, when information is received alleging an injured worker (IW) or a dependent is incarcerated, claims services staff must attempt to secure the following information in order to determine if compensation and medical benefits are payable or not payable:

a.     Proof of conviction and sentence, typically a judgment and sentencing entry from the convicting court, including the convicted offense and length of sentence;

b.     Proof and dates of incarceration;

c.      If IW  or dependent is credited with time served as part of the sentence, the proof and dates of incarceration for the time served.

d.     Incarceration location(s) of the IW or dependent; and

e.     Current institutional mailing protocol and address of the IW or dependent (e.g., the penal institution may require the mailing address to include the inmate number).

2.     If claims services staff is unable to secure the information outlined above in section V.B.1, claims services staff must refer the allegation to their local BWC Special Investigations Unit (SIU).

3.     SIU shall investigate the allegation and:

a.     Open a case if the investigation results show the appearance of an overpayment and/or fraud; and, 

b.     Declare an overpayment, if applicable.

 

C.    Reviewing the Results of the Investigation

1.     If the investigation results show that the IW or dependent was incarcerated and convicted, and the conviction was a violation of state or federal criminal law, then claims services staff must determine if compensation and benefits are payable or not payable.

2.     If the investigation results are unclear, or claims services staff is unsure of the decision based on the information obtained, claims services staff must review the facts with a BWC attorney.

 

 

D.  Determining Impact to Compensation and Benefits

1.   Determining Eligibility for Payment of Compensation and Medical Benefits

a.   Once the investigation is complete, claims services staff must determine next steps based on the following criteria:

i.    For dates of injury prior to 8/22/86, claims services staff must staff with a BWC attorney payment of any type of compensation and benefits , when the IW is incarcerated due to a conviction.

ii.   For dates of injury on or after 8/22/86 until 9/28/17, claims services staff must terminate all compensation and benefits, except for PTD, which is referred to the Industrial Commission (IC), when the IW is incarcerated in any state or federal correctional institution, or in any county jail in lieu of incarceration in a state of federal correctional institution, due to conviction for a violation of a state or federal criminal law.

iii.   For dates of injury on or after 9/29/17, claims services staff must terminate all compensation and benefits, except for PTD which is referred to the Industrial Commission (IC) for termination, when the IW or dependent is incarcerated in any state or federal correctional institution, or in any county jail in lieu of incarceration in a state of federal correctional institution, due to conviction for a violation of a state or federal criminal law.

b.   If compensation and medical benefits are not payable based on the criteria listed above, claims services staff must follow the steps in section D.(2) below.

2.   Declaring Compensation and Benefits Not Payable

a.   When claims services staff has determined that compensation and benefits are not payable, claims services staff must take the following steps based on the compensation type.

i.    Temporary Total

a)   Claims services staff must determine the ineligibility period of TT and make the appropriate adjustments in the claims management system. 

b)   Claims services staff shall not enter the information into the claims management system until the IW or dependent is convicted.

c)   Claims services staff must issue an ordering terminating TT, including the date of termination and the evidence relied upon to reach the decision.

ii.   Permanent total disability (PTD)

a)   Claims services staff must request termination of PTD benefits to the IC via a Notice of Referral (NOR).

b)   Claims services staff must notify the SIU when an IW is on work release and is receiving non-statutory PTD.

iii.   Other types of compensation including death benefits

a)   Claims services staff must determine the ineligibility period of compensation and make the appropriate adjustments in the claims management system. 

b)   Claims services staff must not enter the information into the claims management system until the IW or dependent is convicted.

c)   To declare compensation not payable, claims services staff must send a Subsequent Order.

d)   If the IW was participating in a formal vocational rehabilitation plan at the time of incarceration/conviction, the Disability Management Coordinator (DMC) must request closure of the plan and send the “Living Maintenance Termination as a Result of Plan Closure” letter.

b.   For all types of compensation, claims services staff must update the claim status to “hearing” to prevent payment of compensation and medical benefits by changing the International Classification of Diseases (ICD)  codes to “hearing” status. Claims services staff must document in notes the status of each ICD code prior to changing them to “hearing.” 

3.   Overpayments

a.   Compensation paid to an IW or dependent while incarcerated due to a criminal conviction or, during a period of incarceration prior to conviction that was ultimately counted as time-served must be declared overpaid.

b.   Claims services staff must take the steps necessary pursuant to the Overpayment of Compensation procedure.

4.   Reinstating Compensation after Release from Incarceration

a.   General information

i.    If an IW or a dependent requests compensation and/or benefits after the aforementioned was found not payable due to incarceration and conviction, claims services staff must secure verification of the following:

a)   Release from incarceration;

b)   Date the release occurred.

ii.   If claims services staff is unable to secure this information, then claims services staff must refer the allegation to SIU. SIU will conduct an investigation and forward the results back to claims services staff. 

iii.   Claims services staff must request the IW or dependent provide an updated address when s/he is released so that orders and correspondence may be sent to the correct address.

iv.  Claims services staff must not reinstate compensation over a period that the IW or dependent was ineligible to receive payment due to the incarceration.

v.   If an IW or dependent was previously granted an LSA and BWC has not recouped the entire repayment, claims services staff must:

a)   Determine the period of time compensation was not payable;

b)   Extend the end date of the rate reduction for the period of time the compensation was not payable due to the incarceration.

b.   Percent of Permanent Partial, Scheduled Loss and Facial Disfigurement: When an IW is released from incarceration, claims services staff may release payment for any outstanding balance from an award of percent of permanent partial, scheduled loss or facial disfigurement.

i.    The IW remains eligible for the balance of the award.

ii.   Payment must be made as required by the respective policy and procedure.

c.   TT, Wage Loss, Living Maintenance, Living Maintenance Wage Loss, Death Benefits, Change of Occupation and Temporary Partial:

i.    Claims services staff must process requests for new periods of compensation consistent with the appropriate policy and procedure. 

ii.   All eligibility and other criteria for new periods of compensation must be met.

iii.   Any question related to eligibility and/or appropriate start dates for a new period of compensation must be staffed with a BWC attorney.

d.   PTD: Claims services staff must refer a request for reinstatement of PTD benefits to the IC via a Notice of Referral.

 

E.   Setting Wages

1.   Staffing with a BWC Attorney

a.   If the IW was incarcerated at any time during the 52 weeks prior to the date of injury, the claims services staff must determine the specific dates of incarceration and must staff the claim with a BWC attorney.

b.   The BWC attorney will determine whether periods of unemployment that were the result of the IW being incarcerated will be included or excluded from the Average Weekly Wage (AWW) calculation.

2.   Other Resources

a.   Claims services staff may refer to the Wages policy and procedure for further information.

b.   Additional questions may be sent to the Claims Policy email box.