Guide To
Worker’s Compensation
Mitch Daniels, Governor
Linda Peterson Hamilton, Chairman, Worker’s Compensation Board
of Indiana
Other Publications on
A volume
containing the Indiana Worker’s Compensation Act, the Board’s administrative
rules, and applicable trial rules is available from Lexis Law Publishing for
$45. For more information, call the
Indiana Compensation Rating Bureau at (317) 842-2800 or call or write to Lexis
Law Publishing at 1-800-562-1197,
The Indiana
Chamber of Commerce publishes the Worker’s
Compensation Handbook: A Comprehensive Guide to Worker’s Compensation in
Indiana by
From the Governor:
Dear Fellow Hoosiers,
Thank you for your interest in
This “Guide to
Sincerely,
Mitch Daniels
From the Chairman
This handbook
was written to give readers a general explanation of the current Indiana
Worker’s Compensation and Occupational Diseases Acts. Although care has been taken to provide the most
accurate information concerning
Therefore,
although we expect and hope that you will use this book to aid your
understanding of our workers’ compensation system, you should remember that the
specific answers to questions concerning an individual case may vary from the
general answers provided in this publication.
I hope this
publication helps all those who are affected by the more than 150,000 injuries
that occur in the work place in our great State each year.
Yours very truly,
Linda Peterson
Hamilton
TABLE OF CONTENTS
Agency Information................................................................................................................ P.
A-4
Map of Worker’s Compensation hearing districts................................................................... P.
A-5
Preface............................................................................................................................................... P. A-6
I. INTRODUCTION...................................................................................................... P.
A-6
II. WHO IS COVERED BY THE WORKER’S
COMPENSATION ACT?.............. P.
A-10
III. INSURANCE........................................................................................................... P.
A-20
IV. INJURIES COVERED BY WORKER’S COMPENSATION.............................. P.
A-21
V. EMPLOYER DEFENSES....................................................................................... P.
A-25
VI. EMPLOYER’S REPORT OF INJURY................................................................... P.
A-26
VII. MEDICAL
BENEFITS
........................................................................................... P.
A-27
VIII. COMPENSATION FOR DISABILITY................................................................ P.
A-31
IX. COMPENSATION
FOR PERMANENT PARTIAL IMPAIRMENT................... P.
A-35
X. MAXIMUM COMPENSATION; OFFSET CREDIT PROVISION..................... P.
A-40
XI. BENEFITS
TERMINATION.................................................................................. P.
A-41
XII. MEDIATION/DISPUTE RESOLUTION............................................................... P.
A-43
XIII. COMPROMISE AGREEMENTS........................................................................... P.
A-47
XIV. CAN A WORKER’S COMPENSATION CASE BE
REOPENED?..................... P.
A-47
XV. ATTORNEYS........................................................................................................... P.
A-48
XVI. SECOND
INJURY FUND...................................................................................... P.
A-50
XVII. DEATH BENEFITS ................................................................................................ P.
A-51
XVIII. DEPENDENTS....................................................................................................... P.
A-52
XIX. MISCELLANEOUS
ISSUES.................................................................................. P.
A-53
XX. ENFORCEMENT OF AWARDS/INSOLVENCY OF CARRIER....................... P. A-54
XXI. THIRD PARTY LITIGATION............................................................................... P.
A-54
XXII. OCCUPATIONAL
DISEASES ACT..................................................................... P.
A-55
XXIII. VOCATIONAL REHABILITATION.................................................................... P.
A-56
XXIV.
REEMPLOYMENT RIGHTS................................................................................. P.
A-56
XXVI. APPENDIX
GLOSSARY............................................................................................................. P.
A-57
CHARTS................................................................................................................... P.
A-58
CHART 1.
Temporary Total Disability Compensation
CHART 2. PPI
Compensation per Degree of Impairment
CHART 3. PPI
Compensation: July 1, 1997 - Present
CHART 4, PPI
Compensation: July 1, 2002 – June 30,
2007
FORMS
Independent Contractor
Affidavit of Exemption (45899)
Agreement to
Compensation of Employee and Employer (1043)
Report of Claim
Status/Request for I.M.E. (38911)
Request for Assistance
(45442)
Application for
Adjustment of Claim (29109)
Application for Review
by Full Board (1042)
Application for
Adjustment of Claim for Provider Fee (SF 18487)
Request
for Prosthetic Repair or Replacement
Application for
Second Injury Fund Benefits (SF 51247)
Agency
information
The office of
the Worker's Compensation Board of Indiana is located in Room W-196 of the
Indiana Government Center South at the corner of
Mailing Address
Worker's
Compensation Board of
Telephone Numbers
Administrative
and Ombudsman Division (317) 232-3808
Office
of the Executive Secretary (317) 232-3809
Approval
Services Division (317)
233-3914
Intake
Division (317) 232-3817
Toll-free
outside of 317 area code (800)
824-2667
Indiana Worker’s Compensation Board Hearing Districts
District Board
Member Court Reporter CASE COORDINATOR
1 James Dowling Laurie
Krieger Kristie Maurer (317) 232-5922
2 James Sarkisian Diane Fogarty Kristie Maurer (317) 232-5922
3 Daniel Foote Joyce Emerson Beth Wallace (317) 233-3908
4 Diane
Emswiller Darcy Bryant Ryan Cotham (317)
233-3907
5 Andy Ward Angela Fehn Gary Cahill (317) 233-3906
6 Krysten
Lester Maucie
Ellis
PREFACE
This
guide to
While
the information here is based on the Indiana Worker's Compensation and
Occupational Diseases Act, it cannot and should not be relied upon as legal advice.
Readers
are invited to duplicate and distribute this book. Comments on the contents of this book are
welcomed and should be directed in writing to Darren Dye, paralegal to the
Worker's Compensation Board.
I. INTRODUCTION
Overview of the Indiana Worker’s Compensation Act
How to order a
copy of the Act
Political Structure of the
Board
Which state worker’s compensation law applies?
As
the industrial revolution advanced and production became the business of
capital rather than the family unit, farmer, or artisan, injured workers and
their families were often devastated by work-related injuries. Workers often had no guaranteed means of
recovery for medical expenses and lost wages resulting from work-related
injuries or illness.
Prior
to the enactment of workers’ compensation laws, employees could sue for damages
in civil lawsuits against employers.
However, employees seldom prevailed because employers could invoke
powerful legal defenses such as the "assumption of risk" doctrine,
which held that workers had no remedy for the normal risks inherent to their
jobs. Another doctrine, the “fellow
servant” rule, held that employers were not liable to employees for injuries
caused by the negligence of other employees.
In order to prevail, the worker had to prove, at a minimum, that the
employer was negligent. The employer
could still use the employee's negligence as a defense to a lawsuit. It has been estimated that before the
enactment of worker's compensation acts, over eighty percent of employee
lawsuits against employers for on-the-job injuries failed. As a result, the
cost of workplace injuries was passed on to injured workers and their families,
and to the public at large when workers could not pay for their medical care
and collected public aid when they were unable to earn wages due to their
injuries.
Even
if a lawsuit was ultimately successful, it did not provide for the employee’s
immediate need for medical attention and temporary wage replacement. The common law system was also costly and
time consuming for employers. Although
employee recovery was rare, a large civil judgment and protracted litigation could
be devastating to a business.
Workers’
compensation systems developed as a compromise between employers and employees.
Under workers’ compensation, the common law defenses to liability are
unavailable to the employer, while remedies for pain and suffering and
consequential damages are unavailable to the employee. The fault-based common law system was
abandoned for a system which approaches a no-fault insurance system, and
provides a more expedient administrative remedy in place of civil litigation.
Overview
of the Indiana Worker’s Compensation Act
Like
most states,
The
Worker’s Compensation Board has exclusive jurisdiction to hear claims for
personal injury or death by accident arising out of and in the course of
employment. Worker’s compensation
provides limited benefits
to injured workers in the form of 1.) medical
treatment,
2.) compensation
for lost wages, and 3.) compensation for the loss or loss of use
of parts of the body. These are the only
benefits an injured employee may be entitled to under the Acts, unless they are
rendered permanently and totally disabled.
If an employee dies in a workplace accident, the employee’s dependents
may become eligible to collect certain death benefits.
When
a compensable
injury occurs, the employee should receive immediate medical treatment if
necessary. If the employee is temporarily
unable to work because of the injury, he or she is considered disabled and may
receive limited wage-replacement compensation, called temporary total
disability, or TTD. The employee may be
placed on light duty or on a reduced schedule, in which case partial disability
payments may be provided. When the
injury heals to the point that it will likely get no better and no worse the
employee is said to have reached maximum medical improvement, or MMI. The employee may now be examined to determine
if there is any permanent impairment, meaning a permanent loss of a body
part or function. If the injury is found
to result in a permanent impairment, the employee will be compensated
according to a statutory schedule.
Claims
for work injuries will be handled initially by the employer or its worker’s
compensation insurance carrier. If a
dispute arises, either the employer or the employee may file a claim with the
Board and request a hearing before a worker’s compensation judge.
Political
Structure of the Indiana Worker’s Compensation Board
The
Worker's Compensation Board is composed of seven Single Hearing member judges, one
of which is designated by the Governor of Indiana as the Chairman. The Board, with the assistance of its staff,
has the duty to administer
Board
members have the authority to hear, determine, and review all claims for
worker's compensation due to an accidental injury at work or an occupational
disease. Board members may order medical
treatment for injured employees, and compensation in the forms of temporary
total disability, permanent partial impairment, and/or permanent total
disability. They may also approve claims
for medical and attorney's fees incurred under the Acts, approve agreements
between employers and employees, and modify awards.
The
Worker's Compensation Board appoints an Executive Secretary who directs the
staff of the Agency on a day-to-day basis.
The Executive Secretary and the staff are available to the public to
answer questions during business hours by telephone, in writing, or in
person. Various members of the staff are
also available to address conventions or meetings. Requests for speakers should be submitted in
writing to the Executive Secretary.
The
employees of the Board are knowledgeable about worker's compensation and can
answer general questions and offer assistance with the administrative steps
necessary to proceed through the worker’s compensation system. However, members of the staff cannot give
legal advice to employers or employees. Questions such as "Is my claim compensable?"
or "Can we deny this employee's claim?" are best left to an attorney,
and ultimately, to the worker's compensation hearing judges. Agency staff members cannot act as
representatives or advocates of the parties to a worker's compensation
dispute.
Agency Divisions
The Ombudsman
Division has been established to assist employers and employees who
have problems or disputes in worker’s compensation matters. Upon receipt of a signed Request for
Assistance Form the Ombudsman
division may attempt to informally resolve disputes arising between
employers and employees. If the Ombudsman division is unable to resolve
a dispute, the parties may file for a hearing before a worker's compensation
judge.
If
you require the assistance of an Ombudsman, you may call (800) 824-2667,
or fill out a written Request for Assistance.
Upon receipt of the form, an Ombudsman will contact the parties
involved in order to attempt to resolve the dispute.
The Ombudsman
Division currently has three Case Coordinators. The three Case Coordinators guide
pro-se plaintiffs, conduct limited pretrial conferences, facilitate resolution
of files three years and older, and mediate cases in which settlement is
possible.
The Case
Coordinators work in the field to assist the six Single Hearing Members of the
Board. In addition, one IME specialist schedules and coordinates independent
medical appointments for injured workers throughout the state.
The Approval
Services Division is responsible for processing and checking the
accuracy of reports of injury and compensation agreements. If you have a question about the calculation
of disability or permanent partial impairment (PPI) benefits, contact this
division. Approval Services reviews
agreements for TTD, when the injured
worker is totally disabled from work, TPD,
when the injured person is temporarily able to do partial work at less pay, PTD, permanent total disability, PPI, when the injured person will not
achieve 100% recovery, and fatality reports.
Processing PPI agreements is very fact specific as it involves reading
and understanding medical reports and making calculations according to the Act.
The Intake
Division processes Requests for Assistance, Reports of Claim Status
when an injured worker requests an IME, Applications for Adjustment of Claim to
initiate the formal hearing process, Provider Fee Applications, and Full Board
Review Applications. The division also
processes and administers Independent Contractor Clearance Certificates,
in conjunction with the Indiana Department of Revenue (see page 13).
The
Administrative
Division processes and schedules applications for hearings, motions,
settlement agreements and other filings. It administers the Second
Injury Fund and the Self Insurance program. The administrative division can answer
questions about single hearing member and Full Board hearings, continuances,
and disputed cases (claims in which an Application for Adjustment of Claim has
been filed).
Jurisdiction
of the Worker’s Compensation Board
The
Worker's Compensation Board has subject matter jurisdiction of claims for
"personal injury or death by accident arising out of and in the course
of employment." This important
phrase defines the circumstances under which a claim is compensable
and will be discussed in detail later in this handbook. The Board's jurisdiction over such injuries
reaches all employer-employee relationships covered by the Indiana
Worker's Compensation Act, affecting over two million workers. The
Act also covers
Which
State Worker’s Compensation Program Applies?
Every
State has its own workers’ compensation system.
When work is performed in more than one state, it may be difficult to
determine which state’s compensation system applies. A common rule is that a state may apply its
worker’s compensation system if there is a contract for employment in the
state. The employment contract can be
written, oral, or implied. However,
state worker’s compensation laws may
also be applied in:
·
the
employee’s state of residence,
·
any
state in which the employee performs work, and
·
the
state in which the employer insured its workers’ compensation liability.
The
employee may have the right to file a claim for benefits in all states in which there might be
coverage. However, if a successive award
is made, the employee will generally be required to repay the previous award
(double compensation is not allowed).
Employees should contact an attorney or the relevant state workers’
compensation authorities for information on workers’ compensation law and
procedure in states other than
Although
some states utilize election forms which allow the employee to only bring
claims for workers’ compensation in that state,
II. WHO IS COVERED BY THE WORKER’S
COMPENSATION ACT?
For
purposes of the Indiana Worker’s Compensation Act, all types of employment
relationships may be divided into three categories:
1.
Employment
that must be covered by workers’
compensation.
2.
Employment
that is not covered by workers’
compensation.
3.
Employment
that is not automatically covered,
but which may be covered at the
option of the employer. In some cases
the consent of the employee is required.
Employment Relationships that Must be Covered
All
(1) Executive
officers elected or appointed and empowered in
accordance with the charter and bylaws of a private corporation are employees
under the Act and are covered. Ind. Code
§22-3-6-1(b)(1).
(2) Employees
working outside of the State of Indiana,
whether in another state or outside of the United States, are covered by
worker’s compensation as long as there is an Indiana employment
relationship. Ind. Code §22-3-2-20.
(3) Members
of the Indiana General Assembly; Field Examiners of the
State Board of Accounts
are covered. Ind. Code §22-3-2-2(g).
(4) Employees
of boxing, wrestling, and other ring exhibitions
must be covered by worker’s compensation insurance, in addition to other types
of insurance. 808 IAC 2‑33‑1.
(5) Part-time
employees are covered.
(6) Minor
employees are covered. If a child under the age of seventeen (17)
years is forced, required, or permitted to work in violation of Ind. Code
§20-8.1-4-24 or Ind. Code §20-8.1-4-25, the Board is required to award the
child employee double the compensation ordinarily payable under the Act. Ind. Code §22-3-6-1(c). Ind. Code §20-8.1-4-25 prohibits child labor
in any hazardous occupation designated under the federal Fair Labor Standards
Act (29 U.S.C. §§201-219), as amended.
Half of an award of double compensation for child labor violations would
be payable directly by the employer;
the other half would be the responsibility of the employer’s insurance
carrier. Ind. Code §22-3-6-1(c)(2).
Payments of compensation in excess of one hundred dollars ($100) to employees under the age of eighteen (18) years must be made to a trustee or guardian, or to the parents of the employee if ordered by the Worker’s Compensation Board. Ind. Code §22-3-3-28.
(7) Students participating in
on-the-job training under the federal School to Work Opportunities Act
(20 U.S.C. 6101 et seq.) are eligible to receive medical benefits, permanent
partial impairment compensation, and in the event of death, burial compensation
and a lump sum payment of one hundred seventy-five thousand dollars
($175,000). Ind. Code §22-3-2-2.5.
(8)
The
limitations period described in Ind. Code §22-3-3-3 and §22-3-3-27 do not run
against minor employees that have no guardian or trustee. Ind. Code §22-3-3-30.
(9) Volunteer
Firefighters/Emergency Medical Technicians: Volunteer firefighters and EMTs working for a
volunteer fire company or ambulance company must be covered by the medical
treatment and death benefit portions of the Worker’s Compensation and
Occupational Diseases Acts. Compensation
for lost wages and impairment is not covered.
Any dispute as to compensability may be resolved by the Worker’s
Compensation Board through its hearing process.
Ind. Code §36-8-12-10. (See Dispute Resolution, pages 41-43.)
(10)Recipients of Workfare Under Ind. Code § 12-20-11 are only covered
by the medical treatment and burial expense provisions of the
Worker’s Compensation Act.
(11) Licensed
employers regulated by the
Employment Relationships Not Covered
The
following categories of employees are exempt from the Indiana Worker’s
Compensation Act and cannot elect optional coverage:
1. Railroad
Employees.
Railroad engineers, firemen, conductors, brakemen, flagmen, baggage men,
yard engine foremen and their helpers, are excluded from coverage by Ind. Code §22-3-2-2(b). These types of employment are covered by the
Federal Employees Liability Act.
2. Employees
in Federal Commerce.
Ind. Code §22-3-2-19 provides that employees engaged in interstate or
foreign commerce are not covered by
3. Real
Estate Professionals.
Real estate professionals are not employees, and therefore are not covered
under
(a) they are
licensed real estate agents;
(b) substantially
all their remuneration is directly related to sales volume and not the number of hours worked; and
(c) they have written agreements with
real estate brokers stating that they are not to be
treated as employees for tax
purposes. Ind. Code §22-3-6-1(b)(6).
4. Independent
Contractors.
Independent contractors are not employees and; therefore, are not
covered by the Act. The rules for determining
who is an independent contractor for workers’ compensation purposes are similar
to those applied by the Internal Revenue Service. The IRS weighs twenty factors in making such
a determination. Per current case law,
the Board considers some of these factors and others. Note that special procedures concerning independent
contractors working in the building and construction trades are set out below.
An injured worker who has been denied worker’s compensation on the basis that he was an independent contractor has the right to file an Application for Adjustment of Claim with the Worker’s Compensation Board. If the Board finds that the worker was an employee, the worker will be covered by the Worker’s Compensation Act.
5. Independent
Contractors in the Building and Construction Trades. A person is an independent contractor in the
construction trades and not covered as an employee under the Act if, and only
if, the person is an independent contractor under the guidelines of the
Internal Revenue Service. Ind. Code §22-3-6-1(b)(7). These guidelines may be found in IRS
Publication 937.
6.
Athletes on Scholarship. A student athlete who accepted a
"grant-in-aid" from a state university was held not to be an employee
of the university.
7.
Inmates of penal institutions. Inmates who work in a penal institution with
or without pay have been held not to be employees. Inmates injured while incarcerated may have
other rights and remedies under common law.
8. Volunteers.
A volunteer who provides service without
receiving any type of compensation is not an employee and, therefore, is not
covered by the Act. However, if a person
receives any compensation for work,
whether cash or in-kind, that person may potentially be considered an employee.
9.
Coaches. Coaches of youth
sporting events hired by a nonprofit corporation are not held to be
employees. Ind. Code §22-3-2-2(d).
Employment
Relationships that May Elect Optional Coverage
The
Board may be notified of the election of optional coverage by filing an
Election of Coverage Form.
1. Local
police officers and firefighters. The Worker's Compensation Act does not apply
to municipal employees if:
a)
they are members of municipal police or fire departments, and
b)
they are members of a police or firefighter's pension fund.
However, the municipal council may elect
to bring such employees within the
medical provisions of the Act (disability and impairment compensation would
not be covered). Ind. Code
§22-3-2-2(c).
If the medical benefits provided under
workers’ compensation terminate for any
reason before the police officer or firefighter is fully recovered, the
municipal council must provide necessary medical treatment until the employee
is no longer in need of such treatment.
Ind. Code §22-3-2-2(e). Local
police officers or fire fighters covered by a medical-only worker’s
compensation policy should contact their benefits coordinator or the local
clerk or treasurer for more information on coverage.
Other benefits may be available to injured police officers and firefighters
outside of the Worker’s Compensation Act.
Ind. Code §36-8-4-5(a) provides the following care to police officers
and firefighters who are injured or made ill by the performance of their
duties: medical and surgical care; medicines, laboratory, curative and
palliative agents and means; X-ray, diagnostic, and therapeutic service
including during the recovery period; and hospital and special nursing care if
the physician or surgeon in charge considers it necessary for proper
recovery. Note, however, that the
Worker’s Compensation Board has no jurisdiction over medical benefits payable
pursuant to Ind. Code §36-8-4-5(a).
2. Reserve Police
Officers as defined by Ind. Code 36-8-3-20 may be covered by the
medical treatment and burial expense provisions of the Act. The administrative procedures of the Act
apply if compensability of the injury is an issue. Ind. Code 36-8-3-20(j).
3. Volunteers working
for hazardous materials response team. These workers may be
covered by the medical benefit and burial expense provisions of the Act at the
option of the employer and employee.
Ind. Code §36-8-12-10.
4. Executive
Officers of Public or Nonprofit Corporations. An executive officer of a municipal
corporation, other governmental subdivision, or of a charitable, religious,
educational, or other nonprofit corporation may be brought within the coverage
of its insurance contract by the corporation by specifically including the
executive officer in the contract of insurance.
The election to bring the executive officer within the coverage shall
continue for the period the contract of insurance is in effect, and during this
period, the executive officers brought within the coverage of the insurance
contract are considered covered as employees under the Act. Ind. Code §22-3-6-1(b)(2).
5. Sole Proprietors. A sole proprietorship may elect to cover the
owner as an employee under the Act if the owner is actually engaged in the
proprietorship business. If the owner
makes this election, the owner must serve written notice of the election upon
the owner's insurance carrier. No owner
of a sole proprietorship may be considered an employee under the Act until the
notice has been received. Ind. Code
§22-3-6-1(b)(4).
If the owner of a sole proprietorship is an independent contractor in the construction trades and does not elect coverage, the owner must obtain an Affidavit of Exemption (See page A-16) under Ind. Code §22‑3‑2‑14.5. See page 13.
6. Partner
in a partnership.
A partner may be insured as an employee under the Act if the partner is
actually engaged in the partnership business.
If a partner makes this election, the partner must serve written notice
of the election upon the partnership’s insurance carrier and the Worker’s
Compensation Board. No partner may be
considered an employee under the Act until the notice has been received. If a partner in a partnership is an
independent contractor in the construction trades and does not make the
election provided under this subdivision, the partner must obtain an affidavit
of exemption under Ind. Code §22‑3‑2‑14.5.
7. Owner
operators.
An owner‑operator who provides a motor vehicle and the services of
a driver to a motor carrier under a written contract that is subject to Ind.
Code §8‑2.1‑18‑46, 45 IAC 16‑1‑13, or 49 CFR 1057
is not an employee of the motor carrier, and is therefore not covered under the
Act. The owner‑operator may elect
to be covered and have the owner‑operator's drivers covered under a
worker's compensation insurance policy or authorized self‑insurance that
insures the motor carrier if the owner‑operator pays the premiums as
requested by the motor carrier. An
election by an owner‑operator under this subdivision does not terminate
the independent contractor status of the owner‑operator for any other
purpose. Ind. Code '22-3-6-1(b)(8).
8. Members/managers
of limited liability companies.
A member or manager in a limited liability company (LLC) may elect to be
covered under the Act if the member or manager is actually engaged in the
limited liability company business. To
make this election, the member or manager must serve written notice of the
election upon the LLC’s insurance carrier and upon the Board. A member or manager may not be considered an
employee under the Act until the notice has been received. Ind. Code §22-3-6-1(b)(9).
9. Rostered
Volunteers. A volunteer whose
name has been entered and approved on a county, municipal, or township roster
of volunteers for volunteer programs operated by the county, municipality, or
township may be covered at the option of the governmental unit by the
medical-only provisions of the Act. Lost
wage and impairment compensation would not be covered. Ind. Code §22-3-2-2.1.
10. Volunteer Workers
-- State-owned or operated psychiatric institutions. A
person who performs volunteer work for a state-owned or operated psychiatric
institution, receives no compensation of any kind, and who has been approved
and accepted as a volunteer worker by the director of the Division of
Disability, Aging, and Rehabilitative Services; the Division of Family and
Children; or the Division of Mental Health is covered by the medical-only
provisions of the Act. Ind. Code
§22-3-2-2.3.
The
following types of employment are not covered by the mandatory provisions of
the Act but may be brought within the
Act on a voluntary basis upon notice to the employer, employee, and the Board.
1. Casual
Labor. Ind. Code §22-3-2-9
exempts "casual" labor from the coverage of the Worker's Compensation
Act. The burden is on the employer to
prove that the worker meets the definition of a casual laborer. Employment might be considered casual when it
is not in the usual course of trade, business, occupation, profession of the
employer or "irregular, unpredictable, sporadic, and brief in
nature." One Indiana case defined
casual as "happening or coming to pass without design, and without being
foreseen or expected, coming without regularity, occasional, incidental, liable
to happen, subject to chance or accident, uncertain, having the air of a
chance, or incidental occurrence."
In defining "casual" employment, infrequency of employment or its duration is immaterial. The analysis considers the service rendered or work done, rather than with the temporary nature of the employment contract.
2. Household
Employees. In
most instances, the employment of “household employees” is exempted from
mandatory coverage under the Act.
However, individuals employing household help should check with an
insurance expert or an attorney for advice on whether their employees meet the
definition. If not, they must be
covered. Some homeowner’s insurance
policies contain a contingent worker’s compensation rider which would cover
amounts awarded under the Worker’s Compensation Act in the event a household
employee is injured. Ind. Code
§22-3-2-9.
3. Farm
and Agricultural Employees.
Under Ind. Code §22-3-2-9(a), farm and agricultural employees are
excluded from coverage. However, the
term “agricultural employee” is limited to workers performing traditional types of farm labor directly
related to the tending of crops and livestock. Workers injured doing other types of work in
a farm setting may be covered by workers’ compensation laws.
Agricultural employees should determine
whether they are considered by their employers to be exempt from workers’
compensation. Even if considered exempt, employers have the option to cover
employees with worker’s compensation insurance.
Some agricultural employers carry farm insurance to cover medical treatment
of injured workers. These insurance
policies do not provide the wage
replacement and impairment benefits available through The Worker’s Compensation
Act.
There are some specific examples for
consideration:
· Laborers performing strictly agricultural work, such as driving tractors, tending crops, or managing livestock, are probably not covered by the Act, unless the employer has elected coverage. If the employer has elected coverage, the employee can make a claim by contacting the employer or employer’s insurance carrier.
· If the employee is found to be an “agricultural employee” by the Board, the employee may have common law rights of recovery against the employer for his injuries and damages sustained through a work accident.
·
Farmers
or other employers whose business is related in some way to agriculture, but
who employ laborers to perform non-agricultural work, must provide worker's
compensation coverage for those employees.
·
Primarily
non-agricultural businesses which operate farms are probably exempt from
covering employees whose labor is strictly limited to the tending of crops and
livestock.
·
Remember
that any worker has the right to file an Application for Adjustment of Claim
with the Worker’s Compensation Board to determine whether a certain situation
is covered. The burden is on the
employer to prove that the worker meets the definition of a farm or
agricultural laborer and is therefore excluded from coverage.
Migrant
farm workers should be
aware of the provisions of the Federal Migrant Farmworker Protection Act. Migrant farm workers may contact the Migrant
Farmworker Project of the Legal Services Organization of Indiana at (317)
631-9410 for assistance.
Ind. Code §22-3-2-9(b) allows the employers of casual laborers,
agricultural employees, and household employees to elect coverage under the
Act. Once the Act is accepted by the
employer and employee, the employer must continuously provide worker’s
compensation insurance coverage to the employees. Ind. Code §22-3-2-9 provides that notice of
acceptance of worker’s compensation coverage by an employee must be given
either:
a)
30
days prior to any accident resulting in injury or death, or
b)
if
the injury occurred less than 30 days after the date of employment, notice
given at the time of employment is sufficient.
The
employee must accept coverage by
a)
sending
a registered letter to the employer at the employer’s last known address, or
b)
personal
delivery to the employer, or
c)
serving
the notice on any of the employer’s agents upon whom a summons in civil actions
may be served under the laws of
The notice of coverage must be posted in
the place of employment in accordance with Ind.Code § 22-3-2-22.
Independent Contractors in the
Construction Trades
Independent contractors in the building and/or construction
trades are required to become certified with the Worker’s Compensation Board if
they meet the guidelines of the U.S. Internal Revenue Service. Ind. Code §§22-3-2-14.5(a);
22-3-6-1(b)(7). The necessary form is available
from the Worker’s Compensation Board. The
certificate is not available to persons who are incorporated unless it is a
limited liability corporation (LLC).
In
order to become a certified independent contractor for workers’ compensation
purposes, the contractor fills out an application that is filed with the
Indiana Department of Revenue (DOR) along with a twenty-dollar ($20.00) filing fee.
DOR will do a search on each
application to ensure that the contractor has paid the appropriate taxes. If they have not, the application will be
denied until the tax liability is satisfied.
If all taxes have been paid, DOR prints the certificate and sends it to
the Board. The certificate is kept by
the Board for seven days and then mailed to the contractor.
IRS
Publication 937 lists the twenty factors applied by the IRS in determining
whether a worker is an employee or an independent contractor. IRS Form SS-8 may be filed with the IRS for a
determination (for tax purposes only) as to a worker’s status.
Registrants
filing the Independent Contractor Affidavit must certify a desire “to be exempt
from being able to recover under the worker’s compensation policy or
self-insurance of a person for whom the independent contractor will perform work
only as an independent contractor.” Ind. Code §22-3-2-14.5(h)(2). Injuries occurring while working as an
independent contractor will NOT be covered by worker’s compensation. However, injuries occurring while working as an employee might be covered. If an injury occurs, the worker has the right
to file a Request for Assistance with the Ombudsman Division or to file an
Application for Adjustment of Claim asserting the existence of a covered
If
the person filing the Independent Contractor Clearance Certificate has
employees, the contractor must certify that he/she has worker’s compensation
coverage for those employees. Ind. Code
§22-3-2-14.5(h)(1).
Ind.
Code §22-3-2-14.5(I) requires the Board to validate all signed clearance certificates,
but provides the Board with no investigative power to determine whether or not
the affiant is in fact an independent contractor and not an employee.
The wavier is merely a person’s written
declaration of facts, which must be made
voluntarily in order to be valid. Thus, contractors/employers procuring a
validated wavier cannot rely on a Board determination of the worker’s status.
Contractors who require workers to procure a validated wavier while in fact
engaged in an employment relationship run the risk of incurring uninsured
losses, in addition to the penalties provided by the Act for failure to carry
insurance. Furthermore, under Ind. Code
§22-2-2-15(a), no employer can, by written or oral contract or agreement, rule,
or other device, escape the requirement that all employees be covered by
worker’s compensation insurance.
The
independent contractor affidavit is no substitute for a thorough evaluation of
the worker’s compensation risk incurred by an employer/contractor. The independent contractor registration process
should not be used in an attempt to mask an employer-employee relationship
which should be covered by worker’s compensation insurance. An employer who procures independent
contractor wavier from workers who are, in fact, employees may not be held harmless
in a worker’s compensation action and may be found responsible for additional
penalties and costs due to bad faith or fraud.
Temporary and Leased Employees
As
employers, all employee leasing services and temporary agencies are required by
Ind. Code §§22-3-2-5, 22-3-5-1, and 22-3-5-5 to maintain worker's compensation
coverage for all employees. Proof of
coverage is required to be furnished to the Worker's Compensation Board.
Worker's
compensation coverage is required even though leased and temporary employees
may not be directly supervised by officials of the leasing firm or temporary
service. While in some cases the business
where the temporary employee is filling in may arrange for worker's compensation
coverage for employees leased from a temporary agency, the temporary agency may
ultimately be liable if no insurance policy is in place and the agency is found
to be the employer of the leased worker.
Effective July 1, 2000, the General
Assembly added language distinguishing between the lessor and the lessee of
temporary workers, as to which entity is the employer. IC 22-3-6-1(a). In
such a situation the leasing company should verify from the lessee (company at
which the temp will work) that a worker's compensation policy is continuously
in place by requesting a certificate of insurance from the lessee.
In
Joint
employment means that an employee has an employment contract with two employers
and performs work under the simultaneous control of both, and performs
substantially the same task for both employers.
In joint employment cases, both employers may be liable for worker’s
compensation, in proportion to the wages each pays the employee.
All
A
small number of
Payroll
Deductions for Worker’s Compensation Insurance Impermissible
Employers
are not permitted to take payroll deductions to pay for worker’s compensation
insurance. If this occurs, employees may
contact the Employment Standards Division of the Indiana Department of Labor at
(317) 232-2655. If an employer has
deducted worker's compensation premiums from an employee’s check in amounts
less than $800, the employee may have the right to collect the amount deducted
in a proceeding before the Department of Labor under Ind. Code §22-2-9. Employees may also pursue wage claims through
civil/small claims actions. Wage claims
exceeding $800 must be pursued in small claims or civil court.
Contractual
Waivers of Compensation Coverage Impermissible
Occasionally,
employers ask employees to sign contractual waivers of worker's compensation
rights. Such contracts are made invalid
by Ind. Code §22-3-2-15, even if agreed
to and signed by the employee. Even
if there is a signed written agreement to waive worker's compensation rights,
employees are still covered by worker's compensation and should apply for
benefits if injured. If an employer does
not carry worker’s compensation insurance or has asked you to sign an agreement
waiving coverage, contact the Worker’s Compensation Board immediately.
Posting
of Notice of Worker’s Compensation Coverage
Employers
are required to post a Notice of Worker’s Compensation coverage in a
conspicuous location in the workplace.
The Notice must contain the name, address, and telephone number of the
employer’s insurance carrier or the person responsible for administering
worker’s compensation claims. Employers
are obligated by law to provide employees with the name, address, and telephone
number of the worker’s compensation insurance carrier upon request. If an employer fails to comply with these
posting requirements, the Board may assess a civil penalty of $50. Ind. Code §22-3-2-22.
If
you have a question as to whether an employer is covered by worker's
compensation insurance, you may contact the Insurance Division at the Worker's
Compensation Board. Employers suspected
of operating without insurance coverage should be reported immediately to the
Worker's Compensation Board.
Penalties
for Failure to Carry Worker’s Compensation Insurance
An
employer who fails to carry insurance coverage sufficient to meets its
obligations under the Worker’s Compensation Act may be ordered to pay
reasonable medical expenses, double compensation, and reasonable attorney’s
fees to an employee injured during the period in which the employer’s liability
is uninsured. Ind. Code §22-3-4-13(e).
The
Worker’s Compensation Board may pursue court action against an employer who
fails to carry insurance. The court will
have the authority to order an employer to cease doing business in
Finally,
an employer who fails to carry insurance commits a Class A Infraction. Upon written referral from the Worker’s
Compensation Board, employers failing to carry insurance can be prosecuted in
the county in which an employee was injured.
Ind. Code §22-3-4-13(c).
IV. INJURIES COVERED BY WORKER’S COMPENSATION
Elements
of Compensability
Employers
must pay the compensation and benefits provided under the Act when the
following four elements of a worker’s compensation claim are met (see Ind. Code
§22-3-2-2). If the employer/carrier
denies a worker’s compensation claim and the dispute is heard by the Board, the
employee has the burden of proving each of the elements.
2. by accident;
3. arising out of the employment; and
4. in the course
of employment.
"Injury" and "personal
injury” mean only injury
by accident arising out of and in the course of employment and do not include a
disease in any form except as it results from the injury. Ind. Code §22-3-6-1(e).
"By accident" means that the injury was
unexpected. To occur "by
accident," the injury may be either an "unexpected event" or an
"unexpected result." Under the
first theory, an identifiable event occurs and causes an injury. For example, a worker slips and falls on a
freshly waxed floor, spraining an ankle.
Under the “unexpected result” theory, the injury to the employee may be
the combined injurious effect of repetitive motions. For example, a secretary may develop carpal
tunnel syndrome as a result of typing over a period of time. The definition of “by accident” as both an
unexpected event and an unexpected result means that a broad range of injuries
is potentially compensable in
An injury "arises out of the
employment" when
there is some causal relationship between the injury sustained and the duties
or services performed by the employee. This causal relationship is established
when a reasonably prudent person considers an injury incidental to employment
at the time of entering into it or when the facts indicate a connection between
the condition under which the employee works and the injury.
"In the course of employment" means that the accident causing injury
occurred at a time and a place at which the employee would reasonably be
expected to be in connection with this job.
The
Exclusive Remedy Provision
As
discussed in the introduction, the worker's compensation system was designed to
replace the civil lawsuit as the means of recovering damages for work-related
injuries. In
The
Worker’s Compensation Act does not
bar lawsuits against parties (other than the employer or co-employees) who are
responsible for work related injuries or who cause injuries independent of
those covered in the Act. Ind. Code
§22-3-2-13. For example, a delivery
driver who is injured in a car accident may be covered by worker's compensation
and may sue the driver of the other vehicle for civil damages. The employer/carrier would be entitled to
reimbursement of amounts it paid under the Act, from any third party money. See Third Party Lawsuits, page 54.
Effective July
1, 2000, IC 22-3-6-1, along with the language regarding lessors, now includes
in the definition of employer the parent company of the employer and its
subsidiaries.
Examples
of Injuries that May be Covered
The
following types of injuries are included as examples to demonstrate the wide
range of circumstances under which injuries may be covered by worker’s
compensation. These examples are general
and do not mean that a particular injury will or will not be compensable. The compensability of a claim always depends
on the specific facts of the individual case.
Intentional Injuries by the Employer are not considered to occur “by accident”
in
Injuries
intentionally caused by managers, supervisors, or foremen are generally covered
by worker’s compensation.
Repetitive Trauma
injuries such as Carpal Tunnel Syndrome may be compensable in
Co-Employee Assaults The aggressor, if injured, is usually
considered to be outside of the course of employment. The innocent victim of an assault by a fellow
employee is generally covered.
Horseplay A worker injured while participating in
horseplay is not entitled to worker's compensation unless he is an innocent
victim of another person’s horseplay.
However, if the employer acquiesces in the horseplay (allows the
horseplay to proceed without intervening), the injury may be compensable.
Personal Needs Activities undertaken for the employee's personal needs,
comfort, and convenience are considered within the course of employment. In other words, injuries occurring when the
employees get up to get a drink or a snack, to stretch, or to go to the
bathroom, are probably covered.
Parking Lot Injuries
in parking lots owned by the employer are generally considered to be covered,
even if the accident occurs before the employee clocks in or after the employee
clocks out.
Ingress and Egress The time required to enter and exit the
employment premises is generally covered.
Injuries occurring in employee parking lots are generally within the
course of employment.
Heart Attack cases
can be proven under worker’s compensation if the worker can show that their
employment triggered the heart attack.
Hernia
cases can be compensable under worker’s
compensation where it can be medically shown that a work injury caused the
hernia or materially accelerated the occurrence of the herniation.
Heat Stroke, Heat
Prostration, and Sunstroke
injuries may be compensable if the employment puts the worker at a greater risk
for such injuries than the general public.
Psychological Injuries/Mental Stress
Injuries
are potentially
compensable in
·
A
physical injury caused by psychological trauma is potentially compensable
assuming that the stimulus or stress arises out of and in the course of
employment.
·
Where
there has been a physical worker’s compensation injury and the injured worker’s
disability is prolonged or impairment is increased by accompanying
psychological dysfunction, the full extent of disability and impairment may be
compensable.
·
Preexisting
psychological shortcomings and weaknesses of the injured worker which are
aggravated or precipitated by physical injury and trauma may be found to be
compensable to the full extent of the aggravation of the pre-existing
psychological dysfunction.
Exposure to Blood-Borne Pathogens (HIV,
Hepatitis) There
is some uncertainty as to the compensability of these exposure cases because no
Indiana worker’s compensation case has yet addressed the issue of exposure to
HIV, although hepatitis exposure arising out of employment has been held to be
compensable. However, other state
worker’s compensation systems that have addressed the issue uniformly provide
diagnostic testing under worker’s compensation if an employee is stuck with a
needle, splashed with blood or body fluids, or otherwise exposed to risk of a
blood-born infection, as long as the exposure arises out of and in the course
of employment.
Lightning, other Natural Phenomena Injury by lightning or other such natural causes
may be compensable if the employee’s risk of being so injured is greater than
that of a person not so employed; that is, if the course of employment puts the
employee in a place that is more likely to expose him to injury from the
elements than would other places in the vicinity.
On-Call Employees summoned to work are generally considered
to be in the course of employment.
Deviation from Route If
the employee deviates from work activities and an injury occurs, the injury may
not be considered to arise in the course of employment. If the employee deviates from a route for
personal reasons, even if the employee is on company time, or in a company
vehicle, the employee might be considered outside of the course of
employment. However, as soon as the employee
returns from the deviation, he or she is back in the course of employment.
Lunch Period A very general rule on injuries occurring
on an employee’s lunch hour is that the employee is covered while eating lunch
on the employer’s premises and at a place generally considered safe with
employer’s consent. But if the employee
leaves the premises for lunch, coverage ceases unless the employee leaves at
the direction of the employer.
Recreational Activities,
Employer-Sponsored Parties Injuries
occurring at recreational activities connected with the employment where
attendance is encouraged or mandatory may be compensable where the activity is
sponsored by the employer, and where the event produces some benefit to the
employer. Injuries may not be compensable
if the activity is undertaken voluntarily by the employee.
To and From Employment Employees are generally not covered while
traveling to and from work, if the place of employment is at a fixed
location. However, travel to remote work
sites may be compensable. If an employee
is injured while being transported to or from work or work sites in vehicles
provided by the employer, they are probably covered. Accidents occurring while traveling to or
from work in the employee’s personal vehicle may be covered if the travel is
required for work, such as home solicitations.
Traveling Employees
such as salespeople are covered while traveling.
Work Outside of Scheduled Hours
An injury occurring outside of work hours can
still be found compensable if it is caused by the employment and if it occurs
at a time and place where the employee might reasonably be found, for example
performing tasks at the direction of the employer.
Aggravation of Existing Condition The aggravation of an existing condition by an injury
arising out of and in the course of employment is generally compensable.
V. EMPLOYER DEFENSES TO CLAIMS FOR WORKER’S
COMPENSATION
Worker's
compensation is theoretically a no-fault insurance system, in which the injured
worker is "assured of a remedy" regardless of negligence or
fault. Ind. Code §22-3-2-8, however,
contains several “affirmative defenses” to claims for worker’s
compensation. If a claim is denied on
the basis of these defenses, the employee may contact the Ombudsman Division
for information. The employee may also
consult with an attorney to determine whether to contest the denial.
The employer may utilize the following
defenses where the employee’s injury or death is
1) due
to the employee's knowingly self-inflicted
injury,
2) due
to intoxication,
3) due
to the commission of an offense (not
including traffic infractions),
4) due
to a knowing
failure to use a safety appliance
5) due
to a knowing
failure to obey a reasonable written or
printed safety rule which has been posted in a conspicuous position in
the place of work, or
6) due
to a knowing
failure to perform any statutory duty.
Two
examples illustrate the statute.
In this example, a good argument can be
made that the law might bar the employee's compensation because the employee's
intoxication almost certainly caused his injuries.
EXAMPLE B: The same employee arrives at the same job
after consuming a large quantity of alcohol.
Before the employee can get into his truck, he is severely injured by
merchandise which falls from warehouse shelves.
The employer notices a strong smell of alcohol and the employee admits
he was drunk at the time of the accident.
In this example, the employer will be unable to use the employee’s
intoxication as a defense to a worker’s compensation claim because the
intoxication did not cause the employee to be injured by falling merchandise.
Some
employers perform drug screening when an employee is injured in an accident.
Remember that Ind. Code §22-3-2-8 requires the employer to pay worker's
compensation unless the employee's
accident was caused by intoxication.
A positive drug screening may show the presence of an intoxicant, but
does not necessarily demonstrate that an employee was 1) intoxicated at the
time of the accident or 2) that the intoxication caused the injury. Therefore, a positive drug test alone might
not provide a defense to a worker's compensation claim.
VI. EMPLOYER’S REPORT OF INJURY
Filing Requirements
Ind.
Code §22-3-4-13(a) requires that employers file the Employer’s Report of Injury
with the Worker’s Compensation Board if an injury results in the death of an
employee or in the employee’s absence from work for more than one (1) day. Failure to comply with reporting provisions
may subject the employer/carrier to a $50 civil penalty to be collected by the
Board. This report must be filed with
the employer’s insurance carrier
a) within seven days of the occurrence of
the injury or death, or
b) within seven days of the employer’s
knowledge of the injury or death.
The
employer’s insurance carrier must then electronically file the report with the
Worker’s Compensation Board
a) not later than seven days after
receipt of the report, or
b) fourteen days after the employer’s
knowledge of the injury, whichever is later.
If
an employee has been injured and is being treated, but has not missed any work,
the employer is not required to file a Report of Injury with the Board. However, if the employee becomes disabled at
any point (misses one day of work) because of the injury, the Report must be
filed.
The
filing of a Report of Injury by an employer does not constitute the
employer/carrier’s acceptance of compensability. The report merely indicates that an injury
occurred or may have occurred that may or may not be covered under the Indiana
Worker’s Compensation Act. The refusal
or failure of the employer/carrier to file a Report of Injury does not
constitute a denial of compensability.
If the employer/carrier denies liability, the Board and the employee
must be informed in writing on a form mailed not later than twenty-nine (29)
days after the employer’s knowledge of the injury.
If
a claim has been denied by the carrier, a Report of Claim Status/Request for
Independent Medical Examination should be mailed from the carrier to the
employee. The box on the form marked
”claim deemed non-compensable” should be checked. Once officially denied, the employee can
pursue a claim only through the formal hearing process by filing an Application
for Adjustment of Claim with the Board.
Employees
who are injured by accident arising out of and in the course of employment are
entitled to reasonable and necessary medical treatment, rendered free of charge
to the employee. Effective July 1, 2000, IC 22-3-3-4 now requires employers/insurers to
reimburse employees for lost work due to medical treatments or travel to or
from the place of treatment based on their average daily wage.
Who
Chooses the Treating Physician?
With
few exceptions, the employer/insurance carrier has the right to direct medical
care in
In
emergency situations, the employee may be sent to the nearest possible
treatment facility, with follow-up treatment chosen by the
employer/carrier. If the employee seeks
emergency medical care without the prior knowledge of the employer/carrier, the
employee should notify the employer/carrier as soon as possible, requesting
coverage under worker’s compensation.
If
the employer fails to provide “reasonable and necessary” medical treatment, the
employee may go to any physician. Ind.
Code §22-3-3-4(d). However, if the employer/carrier refuses to
pay for the treatment, the employee or the medical provider may have to file
with the Board to seek reimbursement.
When
the employer directs an employee to medical treatment for a worker's
compensation injury, the employer’s insurance carrier cannot later refuse to
pay for the treatment. Ind. Code
§22-3-3-4.
The
employee always has the right to seek medical treatment and medical opinions at
the employee’s own expense.
Any
time that an employee seeks medical treatment outside of the direction of the
employer/carrier, the employee risks incurring liability for the medical
bills. However, if the employee files an
application for benefits with the Board, medical providers are to refrain from
attempting to collect payment from the employee until it is determined who is
liable for payment. Ind. Code
§22-3-3-5.1.
How
Long Will Medical Treatment be Provided?
The
answer to this question varies from case to case, depending on the needs of the
employee.
If
medical benefits are needed, in most cases the employee must file an
Application for Adjustment of Claim within two (2) years from the date of
injury.
Future
Medical Care in Cases Involving Permanent Injuries
In
cases where the employee has suffered permanent injuries, the Board may order
future medical benefits to limit or reduce the extent of the employee’s
impairment. In some cases, the Board may
order palliative treatment (medical
treatment to reduce pain or other symptoms that accompany a permanent
injury). In rare cases, long-term or
lifetime care may be available. In order
to receive future medical benefits, medical care must be provided in the final
order in a disputed case. Application for such benefits must be made within the
applicable limitations period.
In
some cases, insurance carriers hire a rehabilitation nurse to manage the
treatment of an injured employee. These
nurses can be helpful in coordinating successful and rapid treatment. Only
the physician can ask the rehabilitation nurse to leave the examination room at
any time and the nurse must immediately comply.
The
employee has the right to obtain medical records from any physician who has
treated the employee under worker’s compensation. If the physician has a reasonable charge for
duplication of these records, the charge is the responsibility of the employee. Physicians are required by law to provide
records upon a signed, written request by the patient or the patient’s
representative. A reasonable duplication
charge may be made. Physicians must
provide x-ray films at the physician’s cost of duplicating the films.
Rehabilitation
nurses have the right to obtain medical records from the treating physician
selected by the employer/carrier. These
medical records are admissible into evidence at a worker’s compensation
hearing.
To
be admissible in proceedings before the Board, Medical reports must be
submitted to all parties thirty days before the hearing. All medical reports prepared following an
examination or evaluation of the employee must contain:
a)
The
history of the injury, or claimed injury, as given by the patient.
b)
The
diagnosis of the physician or surgeon concerning the patient’s physical or
mental condition.
c)
The
opinion of the physician or surgeon concerning the causal relationship, if any,
between the injury and the patient’s physical or mental condition, including
the physician or surgeon’s reasons for the opinion.
d)
The
opinion of the physician or surgeon concerning whether the injury or claimed
injury resulted in a disability or impairment and, if so, the extent thereof,
and the reasons for the opinion.
e)
The original signature of the physician or
surgeon.
See Ind. Code §22-3-3-6.
If
the employee is requested or required by the employer/carrier to submit to treatment which requires the employee to
travel outside of the county of employment,
the employer must also pay the employee’s reasonable expenses for travel, food,
and lodging necessary during the travel.
Payment or reimbursement for mileage and other expenses is to be made at
the level the state reimburses its employees for travel under the policies and
procedures established by the Department of Administration and approved by the
State Budget Agency.
An
employee requested to submit to an examination
pursuant to Ind. Code §22-3-3-6 is entitled to mileage and expenses in advance of the time fixed for the
examination. Ind. Code §22-3-3-6(b).
Currently, the
state mileage allowance applicable to travel to medical examinations and
treatment under worker’s compensation is forty (.40) cents per mile, no matter
how many trips are made and no matter how many miles are traveled as long as
the employee is travelling within the State of Indiana. Outside of
If
the employee does not have transportation, the employer/carrier must provide a
reasonable sum sufficient to defray the expenses of travel by the most
convenient means to and from the place of the examination. Ind. Code §22-3-3-6(b).
If
the employee is required to miss work because of an examination scheduled by
the employer to determine the compensability of a claim or to report on the
employee’s disability or impairment, the employee is entitled to full reimbursement for any loss of
wages. Effective July 1, 2000, employees are entitled to full reimbursement
for lost wages during ordinary medical treatment or therapy for an injury. Ind. Code §22-3-3-6(b).
If
a compensable injury results in the loss by amputation of a body part, eye or
natural teeth, the employer must provide an artificial replacement, if
necessary. Replacement or repair of
prosthetic devices due to medical necessity or normal wear and tear shall be
paid out of the Second Injury Fund.
After
June 30, 1997, the employer is also responsible for the repair or replacement
of an artificial member, brace, implant, eyeglasses, prosthodontics, or other
medically prescribed device that is damaged or destroyed in a compensable
injury.
Illegal
Collections of Medical Bills from Injured Workers
It
is unlawful for medical providers to collect money from the employee or the
employee’s estate if medical bills are the responsibility of the
employer/carrier under the Worker’s Compensation Act. Ind. Code §22-3-3-5. Upon hearing, the Worker’s Compensation Board
has the authority to fine medical providers and their collections agents who
attempt to collect such sums from employees.
Ind. Code §22-3-3-5.1.
If
the employer/carrier directs the employee to a medical provider but does not
pay all of the bills, the responsibility to resolve the dispute lies between
the employer/carrier and the medical provider.
The insurance carrier cannot refuse liability for payment of a medical
bill if the employer directed the employee to a medical provider for
treatment. Finally, if the employee
seeks reasonable medical care in an emergency or because of the
employer/carrier’s failure to provide treatment, the bills may be the
responsibility of the employer/carrier.
If
a medical provider is attempting to collect money from an injured worker and
the injured worker believes that the medical expenses should have been paid by
the employer/carrier, the employee should immediately file a Request for
Assistance and an Application for Adjustment of Claim with the Board. The filing of the Application may prevent the
medical provider from collecting from the employee until a determination of
liability for the bills is made.
VIII. COMPENSATION FOR DISABILITY
Under
the Worker’s Compensation Act, “Disability”
means an inability to work.
Types of Disability Compensation
The
Worker’s Compensation Act covers three types of disability: Temporary Total Disability (TTD), Temporary
Partial Disability (TPD), and Permanent and Total Disability (PTD).
Temporary Total
Disability (TTD) is paid
for the time period an employee is completely unable to perform his or her
regular work because of an injury. TTD
is paid at the rate of two-thirds (2/3) of the employee’s pre-injury average weekly
wage, subject to a maximum period of 500
weeks. Ind. Code §22-3-3-8; Ind. Code
§22-3-3-22.
Temporary
Partial Disability (TPD) is paid
when the employee is partially unable to work for the employer the employee was
working for at the time of his injury.
For example, an employee’s injuries might limit the number of hours she is
able to work, or might mean that the employee is temporarily assigned to a job
that pays less than her pre-injury job.
TPD is paid at the rate of two-thirds (2/3) of the difference between
the employee’s pre- and post-injury average weekly wages, subject to a maximum
period of 300 weeks. Ind. Code
§22-3-3-9.
Permanent Total Disability (PTD) awards are paid when it is established
that the employee will never again be able to work in reasonable
employment. A PTD award is paid for 500
weeks at the rate of two-thirds (2/3) of the employee’s pre-injury average
weekly wage. Ind. Code §22-3-3-8; Ind.
Code §22-3-3-10. If a minor is permanently
and totally disabled, the Board has the discretion to order the minor compensated
in a lump sum. Ind. Code
§22-3-3-25(b). For all others, a lump
sum is payable upon agreement of the employee, the employer or insurance
carrier, and the Worker’s Compensation Board.
Ind. Code §22-3-3-25(a). For
injuries occurring on or after January 1, 1998, the minimum total benefit is
$75,000.
For
injury dates between July 1, 1989 and June 30, 1991, awards for Permanent Total
Disability are payable in addition to
TTD payments of up to 125 weeks, subject to the maximum compensation limits contained
in the Act. For injury dates after July
1, 1991, awards for Permanent Total Disability are payable in addition to TTD payments of up to 125 weeks, subject to the
maximum compensation limits in the Act. See Chart 1. On and after July 1, 1997,
awards for any combination of Permanent Total Disability, Temporary Total
Disability and Temporary Partial Disability are limited to a total of 500 weeks
When
a compensable injury renders an employee unable to work, compensation for lost
wages is paid starting on the eighth day.
However if the employee is still disabled, on the twenty-second day after
the injury, the employee will receive compensation for the first seven
days. Ind. Code §22-3-3-7(a).
The
first weekly installment of compensation is due fourteen (14) days after the
disability begins. Not later than
fifteen (15) days from the date that the first installment is due, the
employer/carrier must tender to the employee an Agreement to Compensation,
along with compensation due, or request an extension of time. Ind. Code §22-3-3-7(b).
If,
however, the employer/carrier denies liability, a written notice of denial must
be mailed within 30 days after the employer’s knowledge of the alleged injury. Ind. Code §22-3-3-7(b).
How
is Disability Compensation Paid?
All
disability payments are paid in weekly installments, unless the Board orders
payment in biweekly or monthly installments.
Ind. Code §22-3-3-24. Back
payments can be brought up to date by payment in a lump sum.
Is
Disability Compensation Taxable?
Disability
compensation for lost wages under worker’s compensation (TTD) is not taxable
income. See Internal Revenue Code §104.
Calculation
of the Employee’s Average Weekly Wage
The
Average
Weekly Wage (AWW) of the employee is calculated by taking the total
wages earned by the employee in the fifty-two (52) week period immediately
preceding the date of injury, divided by fifty-two (52). Ind. Code §22-3-6-1(d).
If
the employee lost seven (7) or more working days during the fifty-two weeks
preceding the injury, the Average Weekly Wage must be found by dividing the
employee’s earnings over the number of weeks and days the employee actually
worked. Ind. Code §22-3-6-1(d)(1).
If
the worker was not employed for all of the fifty-two weeks preceding the
injury, the employee’s average weekly wage must be calculated by dividing the
total earnings by the number of weeks actually worked, if this method results
in a just and fair result to both parties.
Ind. Code §22-3-6-1(d)(2).
If
it is impracticable to calculate the average weekly wage by any of the above
methods because the employment is of short duration or is casual in nature, the
employee’s AWW may be calculated on the basis of the wages of another person
performing the same work for the employer.
If no such worker is employed, the AWW of a worker in the same grade in
the same district must be used. Ind.
Code §22-3-6-1(d)(2).
If
the employee earns other allowances of any character in lieu of wages as a part
of a wage contract, the earnings must be considered in calculating the
employee’s AWW. Ind. Code
§22-3-6-1(d)(3).
Students
working in Cooperative Programs with Employers pursuant to Ind. Code
§20-10.1-6-7
are considered to be full-time employees for purposes of calculating the
average weekly wage. To determine the
AWW, multiply the student’s hourly wage rate by 40 hours. Ind. Code §22-3-6-1(c)(3); §22-3-6-1(d)(4).
Sales
Commissions, Overtime, Tips
Sales
commissions, overtime, and tips must be considered in calculating the
employee’s average weekly wage.
Wages
from More than One Employment
Worker’s
compensation covers lost wages from the job at which the employee was working
when injured. Wages from other
employments are NOT considered in calculating the employee’s AWW unless the
employments are the same or similar in nature.
CHART
1. WEEKLY COMPENSATION FOR DISABILITY
Disability compensation (TTD) is usually
paid weekly and is based on 2/3 of the employee’s average weekly wages (AWW) on
the date of the injury. TTD payments are not taxed. Disability payments are subject to minimum
and maximum wages and compensation, which vary depending on the date of
injury.
|
Date of Injury |
Min. AWW |
2/3 x Min. AWW |
Max. AWW |
2/3 x Max. AWW |
Maximum Compensation (TTD, TPD, PTD, PPI) |
|
On
or after 7/1/90 |
$75 |
$50 |
$441 |
$294 |
$147,000 |
|
On
or after 7/1/91 |
$75 |
$50 |
$492 |
$328 |
$164,000 |
|
On
or after 7/1/92 |
$75 |
$50 |
$540 |
$360 |
$180,000 |
|
On
or after 7/1/93 |
$75 |
$50 |
$591 |
$394 |
$197,000 |
|
On
or after 7/1/94 |
$75 |
$50 |
$642 |
$428 |
$214,000 |
|
On
or after 7/1/95 |
$75 |
$50 |
$642 |
$428 |
$214,000 |
|
On
or after 7/1/96 |
$75 |
$50 |
$642 |
$428 |
$214,000 |
|
On or after 7/1/97 |
$75 |
$50 |
$672 |
$448 |
$224,000 |
|
On or after 7/1/98 |
$75 |
$50 |
$702 |
$468 |
$234,000 |
|
On or after 7/1/99 |
$75 |
$50 |
$732 |
$488 |
$244,000 |
|
On or after 7/1/00 |
$75 |
$50 |
$762 |
$508 |
$254,000 |
|
On or after 7/1/01 |
$75 |
$50 |
$822 |
$548 |
$274,000 |
|
On or after 7/1/02 |
$75 |
$50 |
$882 |
$588 |
$294,000 |
|
Injury
Occurring on or after: |
Max AWW |
Max TTD |
|
From 7/1/02 to June 30, 2006 |
$882 |
$588 |
|
July 1, 2006 |
$900 |
$600 |
|
July 1, 2007 |
$930 |
$620 |
|
July 1, 2008 |
$954 |
$636 |
|
July 1, 2009 |
$975 |
$650 |
IX. COMPENSATION FOR PERMANENT PARTIAL
IMPAIRMENT (PPI)
Impairment, or Permanent
Partial Impairment as it is referred to under the Act, means the partial or
total loss of the function of a member or members of the body or the body as a
whole. In
An
award of PPI can only be made after it is determined that the employee has
reached “maximum medical improvement” (MMI). MMI may also be referred to as “quiescence” or
“permanence
and quiescence.” Each of
these phrases means that the injury has healed to the fullest extent possible
and no further treatment would improve the employee’s condition. Another way of saying this is that the
employee is “as good as he is going to get” after treatment for the
work-related accidental injury. At that
time, disability compensation (TTD) will be terminated and a PPI rating may be
assessed by the treating physician or another doctor.
Form
1043 Agreement to Compensation
After
the employee has been evaluated for PPI by a physician, the employer/carrier
will furnish the employee with a written Agreement to Compensation stating the
degree of impairment and the amount and method of payment. The employee should be certain that the
agreement properly calculates the PPI rating and average weekly wage prior to
signing the agreement. All of the spaces
in the agreement form should be completed. Never sign an agreement in which
important terms are omitted or spaces are left blank.
Employees
are encouraged to contact the Worker’s Compensation Board or consult with an
attorney before signing such an agreement.
However, delay in signing the agreement may result in a delay in
receiving compensation, or waiver of the right to an IME. Questions about the calculation of PPI
compensation may be directed to the Claims Division of the Worker’s
Compensation Board at (317) 232-3479.
Impairments
that Cause Permanent Total Disability
If
the permanent loss or loss of use of a body part renders the employee
permanently and totally disabled (unable to engage in any reasonable
employment) the employee must be paid either a permanent total disability award (500
weeks at the employee’s average weekly wage) or the amount payable for PPI,
whichever is greater. Ind. Code
§22-3-3-10(c)(8). The award for
permanent total disability is paid in
addition to TTD compensation of up to 125 weeks, subject to the statutory
limit.
Awards
of PPI may be paid in a lump sum upon agreement of the parties and approval of
the Board. However, an award of PPI is
usually paid out in weekly installments equal to two-thirds (66 2/3%) of the
employee’s average weekly wage. This is
the same amount as the employee’s TTD payments were while he was receiving
medical care for his injury. Ind. Code
§22-3-3-10(e).
Payments
of PPI are not taxable. See §104 of the Internal Revenue Code.
PPI
Examinations by Employer’s Physician; Second Opinions
An
injured employee’s PPI is most often assessed by the treating physician. Physicians use the American Medical
Association’s Guides to the Evaluation of
Permanent Impairment in evaluating the employee’s impairment rating. A PPI rating is stated by the doctor in terms
of a percentage of loss or loss of use of a body part or the whole body, for
example “The employee has suffered a loss of 10% to the hand,” or “The
employee’s impairment is 25% to the whole body.”
At
this point the employer/carrier sends a form 1043 to the employee which states
TTD payments are terminated and sets out the employee’s PPI as reported by the
doctor. If the employee believes she
cannot return to work and/or needs further medical care, the employee should
not agree to the PPI offered in the 1043 form.
The employee has 7 days to request an independent medical examination
(IME); a second opinion at the employer’s expense, through this same form. See also p. A-43, Termination with Prior
Notice to Employee. If the employee has
returned to work, a request for an IME may not be granted.
If
the employee disagrees with the treating physician’s rating, the employee may
seek another PPI evaluation at the employee’s expense and submit it to the
employer/carrier and the Worker’s Compensation Board. See also p. A-45.
The
impairment rating assessed by the physician is converted to a dollar award
through the use of the “degree system.”
The entire body is worth 100 degrees, with lower degree values being
assigned to individual body parts. The
thumb, example, is worth 12 degrees. For
each degree of impairment, the employee receives a sum of money determined by a
schedule contained in the Act.
Amputations occurring on or after July 1, 1997, are compensated at
double the dollars per degree provided in statute. Loss of use continues to be compensated at
the dollars per degree provided in statute.
The doctor’s impairment rating is multiplied by the number of degrees
for a given body part to obtain the degree of impairment for the injury:
100% impairment to the whole body (worth
100 degrees)
100% X 100 degrees = 100 degrees
25% impairment to the whole body (worth
100 degrees)
25% X 100 degrees = 25 degrees
50% impairment to the thumb (worth 12
degrees)
50% X 12 degrees = 6 degrees
Injuries
not listed here (i.e. back injuries) are rated as a percentage loss to the
whole body.
For the loss of the:
Arm/hand below the elbow joint 40 degrees
Arm above the elbow or entire arm 50 degrees
Foot/Leg below knee joint 35
degrees
Entire Leg or leg above knee joint 45 degrees
Loss of one testicle 10
degrees
Loss of both testicles 30
degrees
For the loss of any two of the following
parts, in any combination:
Loss of both hands 100 degrees, or Permanent
Total Disability award, whichever is greater.
Loss of both feet 100 degrees, or
Permanent Total Disability award, whichever is greater.
Loss of sight in
both eyes 100 degrees, or
Permanent Total Disability award, whichever is greater.
For the loss or loss of use of 2 or more
phalanges of the:
Thumb 12
degrees
Index Finger 8 degrees
Second Finger 7 degrees
Third Finger 6 degrees
Fourth Finger 4 degrees
For the loss or loss of use of 1 or more
phalange of the:
Big toe 12
degrees
Second toe 6 degrees
Third toe 4 degrees
Fourth toe 3 degrees
Fifth toe 2 degrees
Loss of vision:
Permanent loss of vision or its reduction
to 1/10 of normal vision, with glasses: 35 degrees
Loss of hearing:
Complete loss of hearing in one ear 15 degrees
Complete loss of hearing in both ears 40 degrees
Permanent Disfigurement: Up to 40 degrees, where PPI is not
otherwise payable.
CHART
2. PERMANENT PARTIAL IMPAIRMENT
COMPENSATION
PER DEGREE OF IMPAIRMENT
After
a PPI rating in degrees is obtained by applying the above schedule, an award is
made based on the number of degrees using the following schedule. Note that the calculation of the award
depends on the date of injury. For detailed examples of PPI
calculations, see Charts 3 and 4 in the Appendix.
|
Date of Injury |
Degrees |
Dollars per Degree |
|
On or after 7/1/1991 |
1-35 |
$500 |
|
|
36-50 |
$900 |
|
|
51-100 |
$1,500 |
|
On or after 7/1/92 |
1-20 |
$500 |
|
|
21-35 |
$800 |
|
|
36-50 |
$1,300 |
|
|
51-100 |
$1,700 |
|
On or after 7/1/93 |
1-10 |
$500 |
|
|
11-20 |
$700 |
|
|
21-35 |
$1,000 |
|
|
36-50 |
$1,400 |
|
|
51-100 |
$1,700 |
On or after 7/1/97 |
1-10 |
$750 |
|
|
11-35 |
$1,000 |
|
|
36-50 |
$1,400 |
|
|
51-100 |
$1,700 |
|
On or after 7/1/99 |
1-10 |
$900 |
|
|
11-35 |
$1,100 |
|
|
36-50 |
$1,600 |
|
|
51-100 |
$2,000 |
|
On or after 7/1/00 |
1-10 |
$1,100 |
|
|
11-35 |
$1,300 |
|
|
36-50 |
$2,000 |
|
|
51-100 |
$2,500 |
|
On or after 7/1/01 |
1-10 |
$1,300 |
|
|
11-35 |
$1,500 |
|
|
36-50 |
$2,400 |
|
|
51-100 |
$3,000 |
|
Injury Occurring on or after: |
Degree 1-10 |
11-35 |
36-50 |
50+ |
|
Current |
$1,300 |
$1,500 |
$2,400 |
$3,000 |
|
July 1, 2007 |
$1,340 |
$1,545 |
$2,475 |
$3,150 |
|
July 1, 2008 |
$1,365 |
$1,570 |
$2,525 |
$3,200 |
|
July 1, 2009 |
$1,380 |
$1,585 |
$2,600 |
$3,330 |
|
July 1, 2010 |
$1,400 |
$1,600 |
$2,700 |
$3,500 |
X. MAXIMUM COMPENSATION; OFFSET CREDIT
PROVISION FOR PPI
The
Worker’s Compensation Act contains a provision that offsets the payment of PPI
awards where the employee has received TTD payments in excess of a certain
number of weeks.
·
For
injuries occurring between July 1, 1988 and July 1, 1991, if Temporary Total
Disability is paid for over 78 weeks, the employer/carrier is eligible for a
credit against any award of Permanent Partial Impairment (PPI).
·
For
injuries occurring on and after July 1, 1991, if TTD compensation is paid for
over 125 weeks, the employer/carrier is eligible for a credit against any award
of PPI. Ind. Code §22-3-3-10(c).
The Worker’s
Compensation Act limits the amount that may be paid to an employee through
disability and impairment compensation (TTD and PPI). Historically, for injuries occurring on and
after July 1, 1994, and through June 30, 1997, the maximum amount payable is
$214,000. This figure is equal to the
maximum possible award for Total Permanent Disability (TPD). (500 weeks X $428 = $214,000). For injuries
occurring on and after July 1, 1997, and before July 1, 1998, the maximum
amount payable is $224,000. For injuries
occurring on and after July 1, 1998, and before July 1, 1999, the maximum
amount payable is $234,000. For injuries
occurring on and after July 1, 1999, and before July 1, 2000, the maximum
amount payable is $244,000. For injuries
occurring on and after July 1, 2000, and before July 1, 2001, the maximum
amount payable is $254,000. For injuries
occurring on and after July 1, 2001, and before July 1, 2002, the maximum
amount payable is $274,000. For injuries
occurring on and after July 1, 2002, the maximum amount payable is
$294,000. This figure is equal to the
maximum possible award for Permanent Total Disability (PTD). (500 weeks X $448 = $224,000). Ind. Code §22-3-3-22(b).
|
Injury Occurring on or after: |
Max Comp |
|
July 1, 2002 to June 30, 2006 |
$294,000 |
|
July 1, 2006 |
$300,000 |
|
July 1, 2007 |
$310,000 |
|
July 1, 2008 |
$318,000 |
|
July 1, 2009 |
$325,000 |
Termination Without Prior Notice to
Employee
Once
begun, Temporary Total Disability (TTD) compensation may be terminated only if
authorized by the Worker’s Compensation Act see Ind. Code §22-3-3-7(c). The reasons for termination include:
·
The
employee has returned to any employment
·
Refusal
to accept suitable employment under Ind. Code §22-3-3-11.
·
Death
of the employee
·
Refusal
to undergo a medical examination pursuant to Ind. Code §22-3-3-6. The term “examination” should not be confused
with the ordinary medical treatment of the employee’s injuries. “Examinations” are held in order to determine
the opinion of the physician as to the causal relationship between the injury
and the patient’s mental or physical condition, the extent and length of
disability, and the extent of permanent impairment. Benefits must be immediately reinstated if
the employee decides to attend the examination.
·
Employee
has received 500 weeks of TTD or the maximum compensation allowed under the
Act.
·
Employee
is unable or unavailable to work for reasons unrelated to the compensable
injury.
Termination
of benefits for the above reasons may occur without prior notice to the
employee. However, the employer/carrier
is required by 631 IAC 1-1-27 to file a Report of Claim Status with the Board
showing payments made, the date of the employee’s return to work, the date of
cessation of benefits, and the reason for termination of the payments. A copy of this report must also be sent to
the employee.
Termination
with Prior Notice to Employee
When
benefits or compensation are terminated for any other reason, (i.e., the
employer believes the employee has reached maximum medical improvement) the
employer/carrier must furnish the employee with a Report of Claim
Status/Request for Independent Medical Examination prior to the proposed date of termination. The employee may dispute the proposed
termination by completing and signing the section of the form labeled
“Independent Medical Examination Request.”
The signed form must be sent to the Worker’s Compensation Board and the employer/carrier within seven
(7) days. If the form is not returned
within this time frame, the employer/carrier may terminate benefits and
compensation.
If
the Board receives a timely disagreement with the employer’s proposed
termination, an Ombudsman
will contact the parties and attempt to resolve the dispute. In some cases, an Independent
Medical Examination (IME) may be appointed to facilitate resolution
of the dispute. If the IME determines
that the employee is still temporarily totally disabled, benefits may be
reinstated. If it is determined that the
employee is ready to work, benefits may be terminated. Further disputes would be referred by the Ombudsman Division
to the formal hearing process.
Partially
Disabled Employees
The
Worker’s Compensation Act provides incentives to the employer and employee to
return to work as soon as possible. If
the employee is partially disabled, that is, able to work light duty or for
limited hours, Temporary Partial Disability (TPD) compensation is paid to
help make up the difference between light duty wages and the employee’s
pre-injury wage. Ind. Code
§22-3-3-9. No TPD is paid if light duty
wages exceed the statutory maximum average weekly wage.
If
the employee refuses to accept a reasonable
(within any limitations to work imposed by a treating doctor) offer of
employment, compensation may be suspended by the employer carrier during the
period of refusal. Ind. Code §22-3-3-11(a). Before compensation can be suspended or
terminated for the employee’s refusal to work, the employee must be served a
notice setting forth the consequences of the refusal. Ind. Code §22-3-3-11(b). If the employee’s benefits are terminated for
refusal to accept light duty or reduced hours, but the employee later decides
to begin light duty work, the employer/carrier must immediately begin TPD
compensation. If the Worker’s Compensation Board finds that the employee’s
refusal to accept the offer of work was justifiable, full Temporary
Total Disability (TTD) compensation might be payable.
The
absence of light duty work for the employee does not relieve the employer/carrier from the obligation to pay
Temporary Total Disability (TTD).
Termination
of Compensation and Medical Benefits after PPI Award is Made
If
the employee refuses to accept medical services and supplies provided by the
employer to limit or reduce the employee’s degree of permanent partial
impairment after the employee’s injury
has gone to a hearing or been settled on the basis of Permanent Partial
Impairment, the employer/carrier may, upon notice to the employee setting forth
the consequences of such refusal, suspend any further compensation and benefits
until the employee complies with treatment.
Ind. Code §22-3-3-4(c).
Effect of Termination of Employment on
Worker’s Compensation
The termination
of an employee does not terminate the rights of the employee under the Worker’s
Compensation Act. However, eligibility
for Temporary
Total Disability (TTD) and Temporary Partial Disability (TPD) may
be affected. In most cases the employee will
still be entitled to medical care and to compensation for any permanent
impairment (PPI).
The
employer/carrier has the obligation to continue medical treatment until the
employee reaches maximum medical improvement (MMI). Until the employee reaches MMI, the employee
remains either partially or totally disabled and is entitled to TTD or TPD
compensation for the full period of disability.
The
employer/carrier may attempt to find the employee employment in a reasonable
occupation that is the same or similar to the pre-injury employment when the
employee reaches MMI. If the employee is
partially disabled, the employer/carrier may tender employment within work
restrictions and pay Temporary Partial Disability (TPD) compensation. However, if the employer/carrier is unable to
make a reasonable accommodation, the employee is entitled to continued TTD
until maximum medical
improvement is reached.
Effect
of Employee’s Resignation
The
employee’s resignation from a job after an injury does not terminate the
employer’s obligations to the employee, although the employee’s resignation may
affect eligibility for Temporary Total
Disability (TTD) and Temporary Partial
Disability (TPD). In most cases the employee will
still be entitled to medical care and compensation for any permanent impairment (PPI).
XII. MEDIATION/DISPUTE RESOLUTION
Most
workers’ compensation claims are resolved without dispute. If questions or disagreements arise between
the employer, carrier, and employee, the Ombudsman division may be able to
informally assist the parties in resolving the problem. Disputes may also be resolved through a
hearing before the Worker’s Compensation Board.
Mediation is a
means for the parties find a mutually agreeable resolution of their case or
dispute. The Board’s mediators have all successfully completed the forty hour
ICLEF mediation training program. The
following is a description of that procedure.
1)
Both
sides must agree to mediation.
2)
A
written request for mediation is submitted to the Ombudsman Division.
3)
The
case is assigned to a specific mediator.
4)
The
mediator contacts the parties with the location and prospective dates.
5)
Once
the parties have agreed to a date the ombudsman will send out a confirmation
letter asking that the parties submit confidential pre-mediation statements at
least one week before the date of the mediation.
6)
The
mediator will review the disputed case file and the pre-mediation statements to
become familiar with the case and start to identify the issues involved and
confirm appropriateness of mediation.
If not for mediation inform parties and set for final hearing.
7)
Mediation
occurs.
8)
Depending
on the outcome, the mediator will either follow-up with the parties on the
written settlement or if mediation fails facilitate the setting of the case for
final hearing before a member of the Board.
Currently the
case coordinators, Ryan Cotham and Kristie Maurer conduct mediations across the
State. Darren Dye and Mary Taivalkoski
of the Administration Division are available to conduct mediations in
Informal Dispute Resolution: The Ombudsman Division
Employees,
employers, and insurance carriers with general questions or problems may
contact the Ombudsman division for assistance by calling (800) 824-2667 or
(317) 232-5922. Assistance is also
available on a walk-in basis.
Employees
who have been injured and have received no benefits and employees whose
benefits have been terminated may contact the Ombudsman Division for
assistance. The employee will be asked
to complete and sign a Request for Assistance.
The employee’s signature authorizes the Ombudsman to conduct a brief
investigation and attempt to resolve the dispute by contacting both the
employee and the employer/insurance carrier.
If
the Ombudsman Division is unable to resolve the dispute, it will advise the
parties of their right to pursue a claim in a hearing before a worker’s
compensation judge.
A doctor may be appointed to perform an
Independent Medical Examination (IME) if the employer and employee disagree as
to the employee’s readiness to return to work after an injury. The physician conducting the IME will be
chosen from a list of specialists maintained by the Board. The Board usually orders the
employer/insurance carrier to pay for the IME.
The independent examiner will be asked to provide a written opinion as
to the employee’s condition within seventy-two (72) hours. Based on the IME findings, the Board will
determine whether the employee is able to return to work or should receive
continued disability payments. The IME
process is used only to determine whether or not the employee is disabled, or
unable to work. The process is not used
to resolve other types of disputes, such as a disagreement over a PPI rating.
See Ind. Code §22-3-3-7(c); Ind. Code §22-3-4-11.
FORMAL
DISPUTE RESOLUTION: The Hearing Process
Any
party may request a hearing before a member of the Worker’s Compensation Board
by filing an Application for Adjustment of Claim. Ind. Code §22-3-4-5(a). The Application should be filed in triplicate
by regular U.S. Mail. If the statute of limitations is an issue, the Application
can be filed in person or by registered/certified mail.
A
case file will be opened at the Board and the parties will be notified that the
claim has been filed. The case will be
scheduled for hearing in the county in which the injury occurred, the county in
which the employer is located, or an adjacent county. If the employee was hurt or the employer was
doing business in
Hearings
are held in an informal manner. The
Board is not bound by technical rules of practice. See 631 IAC 1-1-3. However, hearsay testimony may be barred and other
rules of evidence may be applied at the discretion of the hearing member.
Case
coordinators now work in the field assisting the judges and court reporters. They may also conduct mediations. Each hearing district has a case coordinator
assigned to it.
Time
Limitations for Filing
While
the employee always has the right to file an Application for Adjustment of
Claim, the hearing judge may find that the employee’s entitlement to benefits
under the Workers Compensation Act is barred by the applicable limitations
statute. Employers and employees should
be aware that the calculation of time limitations can be highly technical. The assistance of an attorney may be
necessary where either side raises the issue of time limitations.
In
order to be entitled to benefits, an Application for Adjustment of Claim must
be filed within two (2) years from the date of injury. Ind. Code §22-3-3-3. If a party wishes to allege that the
employee’s condition has changed, Form 29109 must be filed within two (2) years
from the date for which compensation was last paid under the original
award. Applications for increases in
permanent partial impairment (PPI) and medical treatment must be filed within two
(2) years from the date for which compensation was last paid. Ind. Code §22-3-3-27.
Limitations
on time to file an application do not run against a person who is a minor or
who is mentally incompetent, so long as such person has no guardian or
trustee. Ind. Code §22-3-3-30.
All
employers, except for sole proprietors and partners, must be represented by an
attorney in proceedings before the Board.
It is recommended, but not absolutely necessary, that the employee also
retain an attorney.
If any party to
a dispute disagrees with the findings of the worker’s compensation judge, an
appeal may be brought to the Full Worker’s Compensation Board. Ind. Code §22-3-4-7 An Application for Review
by the Full Board must be filed within thirty (30) days of the date of the
single hearing judge’s decision. Ind.
Code §22-3-4-7. The Full Board meets in
The
Full Board reviews the evidence presented at the initial hearing. It generally does not hear new evidence
except in extraordinary cases. 631 IAC 1-1-15.
Full
Board arguments may be made in person, by legal brief, or both. If the party chooses to file a brief, seven
copies of the brief must be delivered to the Board thirty (30) days prior to
the hearing.