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Policy and Procedure Name:
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Living Maintenance Wage Loss
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Policy #:
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CP-12-02
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Code/Rule Reference:
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R.C. 4121.67; O.A.C.
4123-18-21; O.A.C. 4125-1-01
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Effective Date:
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03/02/2020
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Approved:
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Ann M. Shannon, Chief of Claims Policy and Support
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Origin:
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Claims Policy
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Supersedes:
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Policy # CP-12-02, effective 12/20/18
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History:
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Previous versions of this policy are available upon
request
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Table of Contents
I. POLICY
PURPOSE
II. APPLICABILITY
III.
DEFINITIONS
Comparably
paying work
Weekly wage
received while employed
Successful
return to work
Suitable
employment
Voluntary
limitation of income
IV. POLICY
A. LMWL
Eligibility, Application and Notification
B. Calculation
and Payment of LMWL
C. Subsequent
Periods of LMWL
D. Good
Faith Job Search and Job Changes
E. Stopping
Payment of LMWL
V. PROCEDURE
A. Standard
Claim File Documentation
B. LMWL
Eligibility, Application and Notification
C. Calculation
and Payment of LMWL
D. Voluntary
Limitation of Income
E. Good
Faith Job Search and Job Changes
F. Subsequent
Periods of LMWL
G. LMWL
Case Closure
The purpose of this policy is to ensure that BWC properly
pays living maintenance wage loss (LMWL) to eligible injured workers (IW).
This policy applies to BWC claims services staff.
Comparably
paying work: Suitable employment in which the IW’s weekly
rate of pay is equal to, or greater than, the IW’s average weekly wage (AWW).
Weekly wage
received while employed: The IW’s present earnings (actual
weekly earnings which are generated by gainful employment).
Successful return to work: When the IW has
obtained employment no later than sixty days from the date of closure of the
IW’s approved vocational rehabilitation plan, or has retained employment
following the closure of the IW’s job retention plan, and the employment is:
·
Within the physical and psychiatric limitations caused by the
impairments resulting from the allowed conditions in the claim for which the IW
completed the vocational rehabilitation plan; and
·
Reasonable in comparison with the return to work goals of the comprehensive
vocational rehabilitation plan or job retention plan completed by the IW.
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.
Voluntary
limitation of income: When an IW limits their income by
choosing to work fewer hours or at wages below reasonable expectations for
personal reasons, as opposed to reasons related to the allowed conditions in
the claim.
A. LMWL
Eligibility, Application and Notification
1. Eligibility: BWC
shall provide LMWL compensation to IWs who meet all the following criteria:
a. Experience a
wage loss while employed, due to physical or psychiatric limitations caused by
the impairments resulting from the allowed conditions of the claim;
b. Have a date of
injury on or after August 22, 1986;
c. Complete
an approved comprehensive vocational rehabilitation plan or job retention plan;
and
d. Successfully
return to work no later than 60 days from the date of closure of the IW’s
vocational rehabilitation plan.
2.
Application: It is the policy of BWC to require the IW requesting LMWL
compensation to submit to BWC:
a. A completed Application for
Living Maintenance Wage Loss (RH-18) or equivalent; and
b. Medical
documentation of the IW’s physical or psychiatric limitations resulting from
the allowed conditions of the claim.
3.
Notification: Upon receipt of an RH-18 or equivalent, it is the policy
of BWC to issue an order addressing the IW’s eligibility or non-eligibility for
LMWL.
B. Calculation and
Payment of LMWL
1. Calculation of
LMWL
a. It is the policy
of BWC to calculate the amount of LMWL at sixty-six and two-thirds percent (66
2/3%) of the difference between:
i. The
greater of the IW’s full weekly wage (FWW) or average weekly wage (AWW) for the
claim in which the IW participated in the vocational rehabilitation plan; and
ii. The weekly
wage (present earnings) the IW is receiving while employed.
b. If the IW voluntarily
limits his or her income by restricting the number of hours worked, or by
working at a wage below reasonable expectation when more appropriate jobs are
reasonably available, it is the policy of BWC to calculate the IW’s LMWL at 66
2/3% of the difference between:
i. The
greater of the IW’s FWW or AWW for the claim in which the IW participated in
the vocational rehabilitation plan; and
ii. The income
the IW would have earned if he or she had not voluntarily limited his or her
income.
2.
Payment of LMWL
a. BWC shall issue
LMWL payments following submission of proof of present earnings for the weeks
the IW is requesting LMWL, and other supporting documentation, as applicable.
i. Proof
of present earnings includes, but is not limited to:
a) Pay stubs;
b) Payroll reports;
or
c) A Report of
Earnings for Living Maintenance Wage Loss (RH-94A) or
equivalent, signed by the IW.
ii. Present
earnings include:
a) Gross hourly
wages;
b) Gross salaries;
c) Paid sick leave;
d) Holiday pay;
e) Vacation pay;
f) Bonus
payments, including stock given as a bonus;
g) Commissions on
sales;
h) Tips;
i) Compensatory
time;
j) Overtime
pay;
k) Shift and
holiday differential pay;
l) Profit
sharing paid to employees as payroll;
m) Per Diem & Travel
Allowance – if not paid as a reimbursement of expense;
n) Personal Time;
and
o) A wage
replacement program fully funded by the employer, (i.e., long-term disability).
iii. If the IW is
self-employed, present earnings mean the IW’s gross income minus business-related
expenses.
iv. Proof of present
earnings must be submitted no less than every four weeks (unless the IW is
self-employed or otherwise has a substantial variation in income) in the form
of an RH-94A, pay stubs, or payroll reports from the IW’s current employer.
v. If the IW
is self-employed or the IW otherwise has a substantial variation in income, the
IW may provide proof of earnings on a quarterly basis. The Disability
Management Coordinator (DMC) may require a copy of his or her federal Estimated
Tax for Individuals (1040-ES) quarterly payment voucher, if applicable.
vi. Present earnings do
not include payment of any kind funded in whole or part by the IW.
vii. Staff may reference the Wages
policy for further information regarding what is included and excluded from
present earnings.
b. Payments may
continue for up to a maximum of 200 weeks. The number of weeks an IW may
receive LMWL will be reduced by the number of weeks the IW receives wage loss.
c. LMWL will
not be approved or paid when the IW is participating in a gradual return to
work program, even if no living maintenance (LM) is paid during the gradual
return to work.
d. BWC may pay LMWL
retroactively if the IW did not receive working wage loss while participating
in vocational rehabilitation-related:
i. Transitional
work;
ii. On-the-job
training;
iii. Employer
incentive programs; or
iv. Periods of case-management
follow-up.
e. BWC will pay
LMWL at the amount calculated pursuant to section IV.B.1 of this policy except when
the calculated amount exceeds the statewide average weekly wage (SAWW). In
these cases, LMWL will be paid at the SAWW.
1. BWC requires
that the IW submit subsequent RH-18s, or equivalent, before the specified end date
of the documented restrictions or every six months, whichever occurs first, as
documented in the order.
2. If the IW’s
physical or psychiatric limitations are:
a. Temporary, the
IW must submit medical documentation (MEDCO-14 or equivalent) regarding the
ongoing status of the restrictions with subsequent applications.
b. Permanent, BWC
may request that the IW submit supplemental medical documentation (MEDCO-14,
equivalent, or other medical documentation requested by BWC).
D. Good Faith Job Search
and Job Changes
1. BWC requires
that the IW to make a good faith effort to search for more suitable, comparably
paying employment:
a. When the DMC
determines that the IW has accepted employment that is below the reasonable
expectations of the return to work goals of the vocational rehabilitation plan;
or
b. If the IW can
reasonably be expected to obtain different employment for which earnings are
more comparable to those prior to the injury.
2. BWC requires the
IW to notify BWC prior to changing jobs to allow BWC to determine whether the
job change will result in a voluntary limitation of the IW’s income.
1. LMWL payments
shall stop when:
a. Upon receipt of
an RH-18 or equivalent, the DMC determines that the IW is not eligible to
receive LMWL;
b. A previous
authorization for LMWL has expired and no new RH-18 application or equivalent
is received; or
c. 200 weeks
of wage loss has been paid to the IW.
2. BWC shall communicate
in writing the requirements and status of the IW’s LMWL to the IW.
1. BWC staff shall
refer to the Standard
Claim File Documentation and Altered Documents policy and
procedure for claim note requirements; and
2. Shall follow any
other specific instructions for claim notes included in this procedure.
B. LMWL
Eligibility, Application and Notification
1. The DMC shall
provide information about LMWL to the IW when the IW is participating in a
comprehensive vocational rehabilitation plan or job retention plan, and
a. The IW returns
to work or remains at work in a modified job and it appears the IW will be
making less money than they made at the job of injury as a consequence of the
IW’s physical or psychiatric limitations caused by the impairments resulting
from the allowed conditions of the claim; or
b. The
comprehensive vocational rehabilitation plan is subsequently “Closed Plan
Complete - No RTW”.
2. When BWC
receives an RH-18 or equivalent application for LMWL, the DMC shall:
a. Create a LMWL
case in the claims management system;
b.
Determine if the IW meets the eligibility and documentation requirements
outlined in section IV.A.1 and 2
of this policy;
c. Issue an
order.
i. All orders
shall address the IW’s eligibility or non-eligibility for LMWL in response to
the RH-18.
ii. If the IW
has been found eligible for LMWL, the order shall also include:
a) The dates during
which LMWL is authorized;
b) Any expectations
for job search;
c) Ongoing
documentation requirements;
d) Any finding that
the IW has voluntarily limited their income and the resulting calculation of
LMWL; and
e) Notice of the
limited duration of LMWL.
d. Communicate the
approval, if applicable, to the Claims Service Specialist (CSS) assigned to the
claim. The CSS shall then be responsible for the payment of LMWL following the
expiration of the appeal period, unless waived by all parties to the claim.
1. Upon
notification of the approval of a period of LMWL and submission of proof of present
earnings, the CSS assigned to the claim shall:
a. Enter the IW’s
present weekly earnings into the claims management system to calculate the
amount of the LMWL award, which shall be calculated in the manner outlined in section IV.B.1
of this policy;
b. Pay the
authorized period of LMWL as outlined in section IV.B.2 of this policy if the IW
submits the required documentation verifying continuing eligibility; and
c. Reduce the
number of weeks the IW receives LMWL by the number of weeks the IW received
wage loss, as detailed in the Wage
Loss Compensation policy.
2. Claims services
staff may refer to the job aids on COR for assistance in determining how many
weeks the IW remains eligible for LMWL.
3. The CSS shall
pay LMWL on the same schedule the IW is submitting proof of earnings (e.g., if
the IW submits proof of earnings quarterly, LMWL will be paid quarterly).
4. The DMC and CSS
may approve and pay LMWL retroactively if the IW did not receive working wage
loss while participating in vocational rehabilitation-related:
a. Transitional
work;
b. On-the-job
training;
c. Employer
incentive; or
d. Case management
follow-up.
5. When it is
unclear to the CSS whether payment of LMWL to the IW should continue, the CSS
may seek assistance in making this determination from the DMC.
1. If, upon
examining the IW’s proof of earnings, the CSS believe that the IW may be
voluntarily limiting their income, the CSS shall refer the claim to the DMC to
make this determination.
2. Factors the DMC
shall use to determine whether the IW is voluntarily limiting their income
include, but are not limited to, whether the IW:
a. Is employed at a
level below the reasonable expectations of the return to work goals of the
vocational rehabilitation plan;
b. Has failed to
accept a good faith offer of suitable employment;
c. Is working
fewer hours than:
i. The
IW worked at their former employment;
ii. The physician
has released the IW to work; or
iii. The IW could be
working at the IW’s current employment.
d. Has quit any
suitable employment;
e. Has made a good
faith job search consistent with section V.F.1 and 2 of this procedure.
3. If the DMC
determines the IW voluntarily limited their income, the CSS shall calculate the
LMWL award amount in the manner outlined in section IV.B.1.b of this policy.
E. Good Faith Job
Search and Job Changes
1. The DMC may
require the IW to make a good faith effort to search for more suitable,
comparably paying employment as outlined in section IV.D.1 of this policy.
2. To determine if
a good faith job search will be required, the DMC shall consider:
a. The goals of the
vocational rehabilitation plan;
b. The labor
market;
c. The skills
and work history of the IW; and
d. Any other
circumstances and factors relevant to the IW’s ability to find and/or retain a
suitable, comparably paying position.
3. When an IW
wishes to change jobs after the initial receipt of LMWL, the DMC shall review:
a. The details of
the prospective job to ensure the IW is not voluntary limiting his or her
income;
b. Whether the job
constitutes suitable employment; and
c. Whether
the job is comparably paying work.
1. When it appears
that LMWL will be ongoing past the current authorized period, the DMC shall
send a letter to the IW:
a. Providing notice
to the IW that LMWL authorization will end on the defined date of the current
order; and
b. Requesting that
the IW submit another RH-18 and additional required documentation.
c. The letter
shall be sent:
i. 42
days prior to the end of an authorized period of LMWL; and
ii. Again at
21 days, if the requested evidence has not been received.
2. Prior to
authorizing any subsequent period of LMWL, the DMC shall ensure that the IW has
submitted:
a. An RH-18 or
equivalent. The application must be submitted:
i. Prior
to the end date of the restrictions provided by the IW’s physician; or
ii. Every six
months, whichever occurs first.
b. Proof of earnings;
and
c. If the
IW’s physical or psychiatric limitations are:
i. Temporary,
the IW must submit medical documentation (MEDCO-14 or equivalent) regarding the
ongoing status of the restrictions.
ii. Permanent,
the IW must submit medical documentation (MEDCO-14 or equivalent) upon BWC’s
request.
3. If
the IW has submitted an RH-18 for a subsequent period of LMWL, the DMC shall
determine the IW’s eligibility and issue an order, following the steps detailed
in Section V.B.2.b-d of this procedure.
G. LMWL Case
Closure
: The LMWL case in the claims management system shall be
closed when:
1. The DMC has
issued an order finding the IW not eligible to receive LMWL, as outlined above.
The DMC shall ensure that the effective date of the closure in the claims
management system is the same as the date the order was issued.
2. Authorization
for LMWL has expired and no RH-18 or equivalent is received.
a. The DMC is not
required to send the IW a letter regarding the expiration of benefits if:
i. The
DMC provided appropriate written notice to the IW, as outlined in section V.E.1 of this procedure; or
ii. BWC has
been notified of a change in the IW’s circumstances (e.g., the IW is currently
unemployed or has retired).
b. The DMC shall
close the case in the claims management system, ensuring the effective date of
the closure is the day after authorization expires.
c. If the IW
continues to submit proof of present earnings for LMWL following the expiration
of an authorization period and the DMC sent notice to the IW as outlined in
section V.E.1 of this procedure, the DMC
may either choose to:
i. Close
the case in the claims management system upon expiration of the authorization,
ensuring that the effective date of the closure is the day after the expiration
date of the authorization; or
ii. Keep the
case open for several weeks to allow time for the IW to submit the requested
documentation, ensuring that the case is closed if requested documentation is
not received.
3. 200 weeks of
wage loss compensation has been paid.
a. The CSS shall
send the IW a letter regarding the expiration of LMWL benefits; and
b. Close the case
in the claims management system, ensuring the effective date of the closure is
the same as the date on the abovementioned notice.