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