DI 52120.195 Ohio Workers’ Compensation (WC)
Apply offset to all Ohio WC payments unless specifically noted
A. Types of Ohio WC payments and payment provisions
1. Permanent Total (PT)
PT benefits pay the individual 66 2/3 percent of the individual’s wage. PT can pay lifetime benefits. When PT benefits are awarded they are a set rate, referred to as the “declared rate”.
To correctly process offset for a PT award you must determine if the Disabled Workers’ Relief Fund (DWRF) will cause a reverse offset situation. Refer to DI 52120.195C in this section for instructions.
2. Temporary Total (TT)
TT pays 72 percent for the first 12 weeks, and then reduces to 66 2/3 percent thereafter. TT will pay for the duration of the disability and is not limited to a pre-determined number of weeks.
TT WC benefits may be terminated and reinstated a number of times before a final termination or a permanent award is made. A medical reexamination is needed to continue TT WC. Due to the irregular payments of Ohio TT WC consider the following before removing offset:
Remove offset if the individual indicates that WC has terminated and no further medical examinations are planned, or if the individual indicates that WC has terminated but does not know whether there will be another medical examination.
Do not remove offset if evidence indicates the individual is planning another medical examination.
When SSA receives a report of TT termination:
Review each termination report to determine if it is a final termination.
Include a statement from the individual, if possible, explaining the situation.
CAUTION: Exercise care to ensure the individual does not remain in offset unnecessarily.
3. Temporary Partial (TP) and Wage Loss (WL)
Ohio replaced the terminology of Temporary Partial (TP) with “Wage Loss” (WL) benefits effective with injuries on or after 08/22/1986. WL benefits may be Working Wage Loss (WWL), Non-Working Wage Loss (NWWL), or Living Maintenance Wage Loss (LMWL). WL benefits are similar to TP in that they are paid based upon the individual’s reduction in earnings.
NWWL is limited to 52 total weeks. WL is limited to 200 total weeks. The 200-week WL maximum may be extended up to 226 weeks if combined with 26 weeks of NWWL. The 226-week maximum may be extended in some circumstances if the individual qualifies for LMWL payments.
LMWL payments are paid to an individual who completes a rehabilitation plan and returns to employment, but who still has restrictions due to the allowed conditions in the claim and who suffers a reduction in income compared to the wage he/she was receiving at the time of injury. For situations and examples see Duration of Wage Loss Payments . (Excerpt from Ohio BWC website, instructions for BWC employees).
4. Permanent Partial (PP), Scheduled Loss (SL), Percentage of Permanent Partial (%PP)
PP benefits are awarded as a Scheduled Loss Compensation (SL) or Percentage of Permanent Partial Disability (%PP).
SL payments are calculated as 2/3 of the individual’s wage and subject to the regular State maximum that cannot exceed 100 percent of the State Average Weekly Wage (SAWW).
%PP is calculated as 2/3 or the individual’s wage, but cannot exceed 1/3 of the SAWW. The maximum duration of payment is 200 weeks. The injured individual is typically granted an award as a percentage of the 200 weeks.
An injured individual is awarded $200 per month at a rate of 40 percent. They will receive $200 per month for 80 weeks (40 percent * 200 weeks = 80 weeks).
5. Violation of Specific Safety Requirements (VSSR)
An injured individual may file an application for a VSSR if there is evidence that a violation has or may have occurred from the failure of the employer to comply with a specific safety requirement. The Industrial Commission can assess a penalty ranging from 15 to 50 percent of the maximum workers’ compensation award if the employer is found to be liable.
SSA considers VSSR payments to be a form of WC payments and VSSR payments are subject to offset.
B. Ohio WC lump sum payments
Ohio pays two types of lump sum payments. They issue Lump Sum Settlements (LSS) and Lump Sum Advances (LSA). An LSS is a standard lump sum award. An LSA must be requested by an individual after an award for PT WC or a Scheduled Award has been made and causes a reduction in the payable weekly rate for a specific length of time.
1. Lump Sum Settlements (LSS)
When processing offset for an LSS award attempt to obtain the actual settlement papers. The settlement document will show most of the information needed to correctly process the offset including excludable expenses, specified rates, and specified periods. A printout from the State showing a weekly rate might not be the correct rate with which to prorate the lump sum. If you are using the latest periodic rate to prorate the LSS, use the full declared rate, not a reduced rate.
The printout usually reflects the attorney as the payee and not the injured worker. The attorney will retain a portion of the benefits equal to the attorney fee and write a check to the injured worker for the remainder of the funds. Documentation of the LS award and attorney expenses is needed.
NOTE: “DLS” shown in a settlement document refers to a “DWRF Lump Sum Settlement”. Do not include this amount for offset purposes. The payments represent future DWRF payments.
Ohio commonly terminates benefits and then awards large retroactive checks representing payments from the past. These checks are not lump sum settlements and should be offset as periodic payments for the period they represent.
2. Lump Sum Advances (LSA)
An LSA is an advance of future payments to an injured individual to help provide financial relief from expenses such as attorney fees or general household expenses. The individual can apply for an LSA after being awarded for PT or a Scheduled Award. The most common issuance of an LSA is to cover attorney fees.
See also, DI 52150.065C for more information concerning Lump Sum Advances.
a. PT WC lump sum advances
The money paid to an injured individual through an LSA is withheld from future payments until the money has been repaid.
Effective with 12/01/2004 the injured individual can choose a time period for repayment of 5 years, 10 years, 20 years, or life expectancy. After the LSA has been repaid the individual’s benefit is returned to the original rate.
For an LSA prior to 12/01/2004 the individual receives a permanent rate reduction and their benefit never increases to the original rate.
To accurately process an LSA in ICF or MCS, input the declared rate from the original award, and then determine whether or not to exclude the amount of the reduction from offset. If the LSA is for attorney fees or other excludable expenses, then input the declared rate and exclude the expenses from offset. If the LSA is made for expenses that are not excludable from offset, such as an individual’s personal household expenses, then offset at the original declared rate. When an LSA is paid we apply standard procedures to determine if expenses are excludable from offset.
NOTE: Ohio awards will show “LSAAF” to indicate “Lump Sum Advance Attorney Fee”. The abbreviation of “LSAAF” indicates the LSA was for an attorney fee. No further development is needed and this amount may be excluded. If the award does not indicate the LSA is for an attorney fee you must follow normal procedure to verify that the LSA was for an excludable expense prior to excluding the amount from offset.
See Excludable Expenses in DI 52150.050.
Injured individual awarded declared rate $250 per week PT WC.
Individual applies for LSA to cover $5,200.00 in attorney fees.
The individual elects to repay LSA over 5 years.
Individual receives $230 per week.
Input the individual’s declared rate of $250 per week and exclude $20 per week as an attorney fee excludable expense. After 5 years has expired the attorney fee is repaid. The individual will again receive the original declared rate. Remove the excludable expense and offset for the full $250 per week.
Injured individual awarded declared rate $250 per week PT WC.
Individual applies for LSA of $5200 to pay necessary personal household expenses that do not qualify as an excludable expense.
The individual elects to repay LSA over 5 years.
Individual receives $230 per week.
Input the individual’s declared rate of $250 per week and do not exclude the $20 per week.
b. PP WC lump sum advances
PP Scheduled Loss awards do not allow an LSA in the form of a partial advance, but rather any advance must be for the remainder of all benefits due the injured individual. The claim will be fully paid and considered closed if an LSA is granted.
The same rules apply to PP WC as for PT WC when determining the reason for the advance and for determining excludable expenses.
C. Disabled Workers’ Relief Fund (DWRF)
For individuals receiving PT WC, the State of Ohio provides a minimum guaranteed amount per month. When the combination of PT WC and SSA DIB is less than the guaranteed amount, additional WC money is paid from the DWRF. DWRF DOES NOT apply to any benefits except for PT WC. If SSA DIB is not involved the DWRF payment is determined based upon only the amount of PT WC.
NOTE: SSA performs the offset for receipt of Ohio WC except for some instances when the DWRF is involved. In these instances reverse offset may apply.
SSA is responsible to determine whether reverse offset will apply due to DWRF. Actual receipt of DWRF payments by the individual is not material when determining reverse offset.
1. Determine if reverse offset applies due to DWRF
For reverse offset to apply the individual must first be entitled to both DIB and PT WC. The individual must then be eligible for a DWRF payment.
If the DIB payable after offset plus the PT WC exceeds the DWRF guaranteed amount, then the individual is not eligible to receive a DWRF payment, reverse offset does not apply and SSA will perform the offset.
If the DIB payable after offset plus the PT WC is less than the DWRF guaranteed amount, then the individual is eligible for a DWRF payment, reverse offset does apply and SSA will not perform the offset.
NOTE: The Ohio Industrial Commission uses the original declared amount of WC (i.e., the gross LS amount before any reductions for attorney fees or medical expenses) in determining entitlement to DWRF. If a Lump Sum Advance (LSA) was paid, then use the declared rate awarded prior to the LSA.
To determine the correct offset apply the DWRF guarantee formula.
Use the first month that the individual is entitled to both DIB and PT WC as the starting month to begin calculations.
Determine the amount of DIB that will be payable after WC offset.
NOTE: When calculating the DIB after offset include all WC for the month, not just PT WC. The DIB after offset will be the amount that SSA will actually pay for the month if offset is imposed)
Add the monthly PT WC rate to the DIB benefit payable for the month.
Compare this amount to the guaranteed amount for the starting month. Refer to the chart in DI 52120.195C. in this section.
If DIB + PT WC is less than the guaranteed amount:
Remove the offset effective with the starting month. Do not verify the amount of DWRF as this is no longer material. Complete the Ohio Data Sheet and mail it to the address shown on the bottom of the form. For exhibit of Ohio data sheet, go to the GLPSC Technician’s Page under heading SCPS/CA then WC/PDB:, select Ohio BWC Printout and go to page 16. (http://chinet.ch.ssa.gov/glpscweb/GlpscTechnician.html#sb=1)
If DIB + PT WC is more than the guaranteed amount:
Impose offset and continue to perform the calculation for any month where there is a change in the WC rate, DIB amount payable, or the guaranteed amount. If the amount at any point becomes less than the guaranteed amount, then remove offset. If offset is removed it will never be imposed again.
2. DWRF Guaranteed Amount
Use the following DWRF rates:
Example 1: No Offset - Year 1979 - Individual is awarded DIB prior to WC
$300.00 (before reduction)
DIB payable after offset
Total = DIB after offset + WC
1979 DWRF guaranteed rate
No offset is applicable. Since the total of $400 is less than the 1979 DWRF minimum of $448.83 reverse offset applies. Pay the NH the full $300.00 PIA.
Example 2: Offset - Year 1978 - Individual is Awarded WC Prior to DIB.
DWRF guaranteed rate in 1978
DWRF paid to individual =
$264.79 ($414.79 - $150.00)
NONE (Not yet eligible for DIB payments)
Individual is entitled to DWRF but is not entitled to DIB at this point. Entitlement to DIB begins 01/01/1979.
$150.00 (Do not consider previous DWRF payments by the State)
DIB Payable After Offset
Total Paid After WC Offset
$500.00 ($150.00 + $350.00)
DWRF 1979 guaranteed rate
Offset is applicable. The combined amount payable is $500.00 and more than the DWRF limit of $448.83.
NOTE: In this example, if the DIB payable after offset was $250.00 ($150.00 + $250.00 = $400.00), then the amount would have been less than the guaranteed rate of $448.83. Reverse offset would apply and SSA would pay the NH the full $400.00 PIA.
3. Ohio DWRF Comparison Worksheet
STEP 1: Add declared monthly WC rate and PIA. If the total is less than the related DWRF limit, then reverse jurisdiction applies. If total exceeds the DWRF limit, then go to STEP 2.
STEP 2: Do a trial WC offset for the effective date of the PTD WC award. Determine only the HA payable and put the answer in the 3rd column below. Fill in the other columns as shown in the headings. If the sum in the 4th column is less than the related DWRF limit, then reverse jurisdiction applies. Go to STEP 4. Otherwise, impose offset and go to STEP 3.
STEP 3: Compare each subsequent COLA to its own corresponding DWRF limit because some years the DIB increase is smaller than the DWRF increase. At any time the DWRF limit exceeds the combined monthly-declared WC PTD payment and HA payable, then remove offset and go to STEP 4.
STEP 4: PREPARE the Ohio Data Sheet in DI 52120.195C.1. (Go to the GLPSC Technician’s Page, select Ohio BWC Printout and go to page 16.) http://chinet.ch.ssa.gov/glpscweb/GlpscTechnician.html
EFFECTIVE START DATE FOR W/C PTD PMTS & SUBSEQENT COLA EFF DATES
TRIAL COMP: HA PAYABLE AFTER W/C OFFSET
ADD MONTHLY DECLARED
W/C & HA PAYABLE AFTER WCO
D. Cost-of-living Adjustments (COLA)
Ohio pays a cost of living increase, but only for individuals who receive PT benefits. Notices are mailed in December and the increase is effective in January of each year.
The DWRF guaranteed amount increases yearly and was created to help permanently and totally disabled individuals keep pace with the cost of living. If an individual is below the DWRF guaranteed level they will receive increases yearly based upon the DWRF increase.
The SAWW amount used to determine maximum benefits increases effective with January 1st of each year.
E. Attorney fees
The Ohio WC law allows Attorney fee payments that are a reasonable amount after review of the application. Attorney fees paid out in a lump sum agreement are not permitted to cause a reduction in the individual's existing weekly compensation rate of more than twenty percent (20 percent).
Attorneys typically take 1/3 from a lump sum settlement and 1/3 from an accrued period award. When the attorney is listed on the printout as the “payee”, this is evidence that there are attorney fee expenses. The amount of the fee should be verified with the attorney.
F. Retirement insurance benefits (RIB) considerations
For all RIB or DIB elections the NH should be advised to contact the Ohio Bureau of Workers’ Compensation (BWC) to find out what affect their election will have on the WC benefits.
1. DWRF and PT WC RIB election
The reverse offset involving DWRF creates unique complications for RIB or DIB elections. DWRF payments from the State of Ohio are determined based on the amount of PT WC or, if DIB is involved, the combined amount of PT WC and DIB payment. DWRF is affected by DIB but is NOT affected by the receipt of SSA RIB.
a. Age 62
It may be advantageous for the NH to elect RIB at age 62. If a NH elects RIB and no longer receives DIB then the DWRF payment will be determined solely based upon the PT WC amount. The NH may either become eligible for a DWRF payment when there was none before, or may receive a higher DWRF payment.
b. Age 65 and FRA
SSA no longer imposes offset at age 65. An individual that elected RIB at age 62 to avoid offset will typically reelect DIB at 65. At age 65 a NH could receive a full DIB benefit, but it might not be advantageous when DWRF is involved. DWRF will continue to be reduced by a DIB benefit until the NH’s Full Retirement Age (FRA). However, RIB will never have an affect on DWRF payments. When discussing the possibility of a DIB election at age 65, the individual should be advised to contact the Ohio BWC to see if the increase from electing DIB would be larger than a possible decrease in their WC PT and DWRF payments.
If DIB is not elected at age 65, DIB should then be adjusted to the full PIA at FRA. At FRA, DWRF is not affected by ANY Social Security benefit.
2. TT and RIB election
TT benefits are subject to offset when SSA RIB is received. If RIB is involved a standard limitation is imposed regardless of the amount of the RIB benefit. When RIB and TT are received at the same time Ohio BWC will limit the amount of TT to 2/3 of the SAWW.
It may still be to the NH’s advantage to elect RIB, but the NH should contact the Ohio BWC prior to making any RIB election. Unlike situations involving DWRF, reverse offset is not a possibility for TT WC, therefore an age 65 reelection of DIB will always be advantageous.
G. Verifying WC
Ohio WC can be verified online, by fax, or by phone. To help interpret the Ohio State WC printout see, Guide to Ohio Bureau of Workers' Compensation printout
1. On-line access
On-line access is available and should be the first option to verify Ohio WC records.
Based on Senate Bill 7, effective 06/30/06, the OH WC law now requires a written consent for release of any WC information from BWC files. If contacting the Ohio BWC directly, a signed consent form must accompany the request. The request (an SSA-1709), along with the necessary consent, can be faxed directly to 614-621-9454 for processing.
Call toll free to 1-800-644-6292. The representative can usually provide a printout of the WC information, but can also provide the name and phone number of the caseworker. As stated above you will need a written consent. If you have a more involved question it may be necessary to ask for assistance from the caseworker who can review the actual file.
H. Self-Insured businesses
Most businesses are a part of the State WC fund and awards are paid from the Ohio State Insurance Fund (OSIF). When reviewing an Ohio WC printout self-insured claims can be identified by an “SI” entry for “CLM TYPE”. The Ohio BWC database can provide the employer information and usually the company handling the WC claim. You can obtain WC evidence using these sources or from the NH.
If the Ohio BWC printout contains payment information this means the self insured employer is no longer in business. There may be payment information prior to when Ohio BWC took over the payments.