Guide To Indiana
Chairman, Worker’s Compensation Board of Indiana
on Indiana Worker’s Compensation
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
1-800-562-1197, or write to: Lexis Law Publishing, P.O. Box 7587,
Charlottesville, VA, 22906-7587.
the periodic newsletter of the Worker’s Compensation Board, is
available on the Board’s Internet home page at
www.state.in.us/wkcomp. Each issue addresses legislative and
legal developments and offers articles of general interest to those
affected by Indiana worker’s compensation. For more information,
contact the Ombudsman Division at 317-232-5922.
Chamber of Commerce publishes the Worker’s Compensation Handbook: A
Comprehensive Guide to Worker’s Compensation in Indiana by
Indianapolis attorney Robert A. Fanning. This publication would be
especially useful to Indiana employers. For more information contact
the Indiana Chamber of Commerce at (800) 824-6885.
From the Governor:
compensation laws can affect the life of every citizen of Indiana.
For too long, our state’s outmoded laws covering worker’s compensation
and occupational disease had left working men and women without
adequate protections. For that reason, Governor Bayh appointed a task
force in 1990, bringing together representatives from labor, business,
and the medical community, to review those laws and recommend reforms.
recommendations formed the basis for amendments to the state’s
Worker’s Compensation and Occupational Diseases Acts, approved by the
General Assembly in 1991 and effective July 1, 1991. I am proud that
labor, business, the medical community, the legislature, and the
administration worked together effectively to produce a fairer system.
This handbook is a
guide to Indiana’s worker’s compensation system. We hope it will
enhance public understanding of Indiana’s Worker’s Compensation and
Occupational Diseases Acts.
From the Chairman
This handbook was
written for the purpose of giving readers a general explanation of the
current status of the Indiana Worker’s Compensation and Occupational
Diseases Acts. Although great care has been taken to provide the best
information concerning the Worker’s Compensation Act, the need to
offer general explanations and answers to complex questions can lead
to an oversimplification of the entire process.
although we expect and hope that you will use this book to aid your
understanding of Indiana’s worker’s compensation system, you should
always remember that the specific answers to questions concerning a
specific case may vary from the general answers within this
This agency hopes
that this publication helps all those parties who are affected by the
more than 150,000 injuries that occur in the work place each year.
MEDICAL BILLING AND HEA 1772
Contractor Affidavit of Exemption (45899)
Report of Injury/Illness of Employee (34401)
Compensation of Employee and Employer (1043)
Claim Status/Request for I.M.E. (38911)
for Adjustment of Claim (29109)
for Review by Full Board (1042)
Worker’s Compensation/Occupational Disease Coverage
Worker’s Compensation/Occupational Disease Coverage
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 Washington Street and
West Street in downtown Indianapolis.
Compensation Board of Indiana
Washington Street Room W-196
Office of the
or (800) 824-COMP
This guide to
Indiana worker's compensation is written for employers, employees,
benefits administrators, union representatives, and other Indiana
citizens in need of a brief guide to the rights and remedies available
under Indiana’s worker's compensation system.
information here is based on the Indiana Worker's Compensation and
Occupational Diseases Acts, it cannot and should not be relied upon as
invited to duplicate and distribute this book. Comments on the
contents of this book are welcomed and should be directed in writing
to the Worker's Compensation Board.
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 worker's 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.
Even if a lawsuit
were successful, it could 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 businesses.
compensation systems developed as a compromise between employers and
employees. Under worker's 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 no-fault
insurance system. This system provides a more expedient
administrative remedy in place of civil litigation.
Overview of the
Indiana Worker’s Compensation Act
Like most states,
Indiana has a private insurance worker’s compensation system, which
means that employers must carry an insurance policy in order to cover
liability under the worker's compensation law. A small number of
employers are “self-insured,” meaning they have received special
approval from the Worker’s Compensation Board to pay claims out of
their own funds.
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
benefits to injured workers in the form of medical treatment,
compensation for lost wages, and
compensation for the loss or loss of use of parts of the body. In
the case an employee dies in a workplace accident, the employee’s
dependents may become eligible to collect death benefits.
compensable injury occurs, the employee should receive immediate
medical treatment if necessary. If the employee is unable to work
because of the injury, he or she is considered disabled and may
receive limited wage-replacement compensation. 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 may
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 disputes arise, both the employer
and the employee have the right to a hearing before a worker’s
How to Order a Copy of the Act
containing the Indiana Worker's Compensation and Occupational Diseases
Acts, administrative rules, and related laws can be purchased by
contacting Lexis Law Publishing at (800)562-1197 or the Indiana
Compensation Rating Bureau at (317)842-2800.
The cost is $45.
Structure of the Indiana Worker’s Compensation Board
Compensation Board is composed of seven administrative law judges who
have the duty to administer Indiana's Worker's Compensation and
Occupational Diseases Acts. Board members are appointed by the
Governor to staggered four year terms. Not more than four members of
the Board may belong to the same political party. In addition to
administering the Worker's Compensation and Occupational Diseases
Acts, the Board has the authority to pass administrative rules in
order to carry into effect the provisions of the law. The Board’s
current administrative rules are found at Title 631 of the Indiana
Board members have
the authority to hear, determine, and review all claims for worker's
occupational diseases. Board members may order medical treatment
for injured employees, approve claims for medical and attorney's fees
incurred under the Acts, approve agreements between employers and
employees, and modify or change awards. Ind. Code §22-3-1-3.
Compensation Board appoints an Executive Secretary who directs the
staff of the Agency. The Executive Secretary and the staff are
responsible for the day to day administrative functions of the Board,
and are available to the public to answer questions during business
hours by telephone, in writing, or in person. The staff of the Board
is also available to address conventions or meetings. Requests for
speakers may be submitted in writing to the Executive Secretary of the
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 the
representatives or advocates of the parties to a worker's compensation
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. The
Ombudsman staff can be helpful when an employee feels that he or
she is entitled to worker's compensation but is receiving no
benefits. In a limited number of cases, the
Ombudsman Division may recommend that the Board appoint an
Independent Medical Examination if the employer and employee
disagree as to the employee’s readiness to return to work after a
compensable injury. 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 file the Request for
Assistance. Upon receipt of the form, an
Ombudsman will contact all parties involved in order to attempt to
resolve the dispute.
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 payments or
permanent partial impairment (PPI) agreements, contact the Data
Services division. Beginning in 1995, this division is utilizing new
computer systems to keep detailed statistical records on Indiana
worker's compensation matters.
Insurance Division collects proof of insurance information
from employers, administers the
Independent Contractor Affidavit process (see page 13), and
administers the self-insurance program. Applications for
self-insurance are available upon request.
whether an employer has current worker’s compensation coverage,
contact the Insurance Division. The Insurance Division provides
certificates of compliance pursuant to 631 IAC 1-1-30. Written
requests must be accompanied by a pre-addressed, stamped envelope for
each party who is to receive a copy of the certificate.
Administrative Division processes applications for hearings,
various motions, settlement agreements, and other filings, schedules
worker’s compensation hearings, and administers the
Second Injury Fund. 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).
the Worker’s Compensation Board
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-employer relationships covered by the
Indiana Worker's Compensation Act, affecting over two million
workers. The Act covers Indiana employees working outside of the state
or country at the time of an accident.
Worker’s Compensation Program Applies?
Every State has
its own worker’s compensation system. When work is performed in more
than one state, it may be difficult to determine which state’s
compensation act 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 worker’s compensation
The employee has
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 worker’s compensation authorities for
information on worker’s compensation law and procedure in states other
Indiana can apply
its worker’s compensation law when the Board finds a contract of
employment made in Indiana or a contract providing for performance
(work) in Indiana.
states utilize election forms which state that the employee will only
bring claims in that state, Indiana does not recognize such forms as
barring the employee from filing a claim in Indiana under the above
II. WHO IS
COVERED BY THE WORKER’S COMPENSATION ACT?
For purposes of
Indiana Worker’s Compensation Act, all types of employment
relationships may be divided into three categories:
that must be covered by worker’s compensation.
that are not covered by worker's compensation.
that are not automatically covered, but that may be covered at
the option of the employer. In some cases the consent of the employee
Relationships that Must be Covered
All Indiana public
and private employer-employee relationships (with a few exceptions,
discussed below) are covered by the Worker's Compensation and
Occupational Diseases Acts. It does not matter how many workers are
employed in a business; all employees must be covered. Employees who
have been injured while working and have been told that they are
ineligible for worker’s compensation either because the employment is
not covered by the Act, or because the employer does not consider the
worker to be an employee, may contact the
Ombudsman Division of the Worker’s Compensation Board for
information or an attorney for advice.
elected or appointed and empowered in accordance with the charter and
bylaws of a private corporation are employees under the Act and are
therefore covered. Ind. Code §22-3-6-1(b)(1).
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.
Members of the
Indiana General Assembly; Field Examiners of the State Board of
are covered. Ind. Code §22-3-2-2(g).
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.
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
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.
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
limitations periods 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.
Firefighters/Emergency Medical Technicians:
firefighters and EMT’s working in a voluntary capacity 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. Worker’s compensation for lost wages and
impairment is not covered. Any disputes as to compensability are
resolved by the Worker’s Compensation Board. Ind. Code §36-8-12-10.
(See Dispute Resolution, pages 41-43.)
of Workfare Under Ind. Code § 12-20-11 are covered by the
medical treatment and burial expense provisions only of the Worker’s
Compensation Act. Ind. Code § 12-20-11-5(a). Recipients of workfare
under Ind. Code § 12-20-11 apparently are not covered by the
provisions of the Occupational Diseases Act at Ind. Code § 22-3-7.
Licensed employers regulated by the Indiana Horse Racing Commission
shall carry worker’s compensation insurance as required by Indiana
Statute. 71 IAC 5-1-10.
Employment Relationships Not
categories of employees are exempt from the Indiana Worker’s
Compensation Act and cannot elect optional coverage:
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.
Ind. Code §22-3-2-19 provides that employees engaged in interstate or
foreign commerce are not covered by Indiana worker's compensation
if federal law has provided alternative compensation. For
example, seamen are covered by the Jones Act, and Longshoremen are
covered by the Longshoreman's and Harbor Workers Act.
riverboat casino employees may be treated as seamen under the Jones
Act. Riverboat casino employees who have been injured and are unsure
of their rights should contact an attorney familiar with worker’s
compensation and with the Jones Act.
Real estate professionals are not employees, and therefore are not
covered under Indiana worker's compensation if:
(a) they are
licensed real estate agents;
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
Independent Contractors. Independent contractors are not
employees and therefore are not covered by the Act. The rules for
determining who is an independent contractor are those applied by the
Internal Revenue Service. The IRS weighs twenty factors in making
such a determination. See IRS Publication 937 for more information.
It is possible to file Form SS-8 with the IRS for a determination of a
worker’s status. Note that special registration procedures are in
effect for independent contractors working in the building and
worker who has been denied worker’s compensation on the basis that he
or she 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.
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. See page 13.
A student athlete who accepted a "grant-in-aid" from a state
university was held not to be an employee of the university.
Inmates of penal
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 the common law.
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 could potentially be considered
Relationships that May Elect Optional Coverage
The Board may be
notified of the election of most optional coverages by filing the
Election of Coverage Form.
officers and firefighters.
Worker's compensation 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.
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 worker's compensation terminate for any
reason before the police 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 coordinators or the local clerk or treasurer for more
information on coverage.
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
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).
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
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
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
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
Partner in a
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 partner's insurance carrier and the Worker’s Compensation
Board. No partner may be considered an employee under 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.
An owner‑operator that provides a motor vehicle and the services of a
driver to 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).
of limited liability companies.
A member or manager in a limited liability company (LLC) may elect to
cover the member or manager 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 member's or manager'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
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.
-- 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
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.
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
"casual" employment, infrequency of employment or its duration is
immaterial. The analysis is concerned with the service rendered or
work done, rather than with the temporary nature of the employment
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.
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 should be covered by worker’s
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.
employees should determine whether they are considered by their
employers to be exempt from worker's 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 worker’s compensation.
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.
the employee is found to be an “agricultural employee” by the Board,
the employee may have common law rights against the employer.
Agricultural employees whose employers have not elected to purchase
coverage may or may not be covered by the Worker’s Compensation Act,
depending on the type of work performed.
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 employers who operate farms are probably
exempt from covering employees whose labor is strictly limited to the
tending of crops and livestock.
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.
How to Elect
Worker’s Compensation Coverage for Casual Laborers, Farm/Agricultural
Employees, and Household Employees
§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. Ind. Code §22-3-2-9 provides that notice of acceptance of
worker’s compensation coverage 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 notice of
coverage must be posted in the place of employment in accordance with
Ind.Code '22-3-2-22. The employee must also accept coverage by
a) sending a
registered letter to the employer at the employer’s last known
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 Indiana.
Finally, a copy of
the Notice for Worker’s Compensation and Occupational Diseases
Coverage must be filed with the Worker’s Compensation Board within
five (5) days after service upon the employee and employer.
Contractors in the Construction Trades
Independent contractors in the construction trades are required to
register 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 Independent Contractor
Affidavit of Exemption is available from the Worker’s Compensation
Board. A five-dollar fee is required at the time of filing.
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) as to
a worker’s status.
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 Indiana employer-employee
relationship, even if the worker has also filed the Independent
If the person
filing the Independent Contractor Affidavit has employees, the
contractor must certify that the contractor has worker’s compensation
coverage for those employees. Ind. Code §22-3-2-14.5(h)(1).
§22-3-2-14.5(I) requires the Board to validate all signed affidavits,
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 affidavit 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
affidavit cannot rely on a Board determination of the worker’s status.
Contractors who require workers to procure a validated affidavit 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.
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 affidavits from workers who are, in fact,
employees may not be held harmless in a worker’s compensation action.
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.
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 lessee 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 workers. Effective July 1, 2000, the
General Assembly added language distinguishing between the lessor and
the lessee 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
that a worker's compensation policy is continuously in place by
requesting a certificate of insurance from the lessee.
employees who are lent have been held to be covered by the insurance
of the regular employer. However, an employer who is “borrowing” the
employee of another company should have worker’s compensation
coverage, and the employee has the right to inquire as to the coverage
of both employers. If either employer lacks coverage, the other might
be held liable for worker’s compensation benefits.
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.
employment relationships, with the exception of the exempt
relationships discussed above, must continuously insure the employer's
liability to pay
medical benefits and disability/impairment
compensation to injured workers under the Indiana Worker's
Compensation and Occupational Diseases Acts by purchasing a private
insurance policy. Ind. Code §22-3-5-1. The employer/carrier must
file proof with the Board that it has insured its liability under the
worker’s compensation act. Ind. Code §22-3-5-2. It is the
responsibility of the employer, not of the Worker’s Compensation
Board, to determine whether a given employment relationship must be
covered in Indiana. An assessment of potential liability can be made
by an attorney or an insurance expert.
A small number of
Indiana employers are "self-insured.” A self-insured business pays for
work-related injuries out of its own funds. Employers must apply to
and be authorized by the Board to obtain self-insured status. Ind.
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.
Waivers of Compensation Coverage Impermissible
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
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
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).
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 Indiana until the employer
files proof of insurance coverage with the Board. The court may also
order the employer to provide proof of financial ability to pay any
claims and to deposit a security, indemnity, or bond with the Board to
secure payment for any injuries occurring during the lapse of
insurance coverage. Ind. Code §22-3-4-13(f).
employer who fails to carry insurance commits a Class A Infraction
punishable by fines and imprisonment. 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.
COVERED BY WORKER’S COMPENSATION
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.
"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).
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 Indiana.
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
"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.
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 Indiana, worker's compensation is the
employee's "exclusive remedy" against the employer where there is
personal injury or death by accident arising out of and in the course
of employment. In other words, if there is personal injury by
accident arising out of and in the course of employment, the employee
must pursue any claim against the employer through the worker’s
compensation system. Ind. Code §22-3-2-6.
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 paid
under the Act from any third party proceeds. 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.
Injuries that May be Covered
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
Injuries by the Employer
considered to occur “by accident” in Indiana and therefore would not
be covered. The worker might have cause for a civil lawsuit in such a
situation. However, this kind of case is extremely rare because the
injury would have to be caused by the employer itself, not
merely by a manager, supervisor or foreman. Injuries intentionally
caused by managers, supervisors, or foremen are generally covered by
injuries such as Carpal Tunnel Syndrome may be compensable in Indiana,
if they can be shown to arise out of and in the course of employment.
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.
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.
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.
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
there was some kind of unusual stress or exertion that triggered the
can be compensable under worker’s compensation where it can be shown
that a work injury caused the hernia or materially accelerated the
occurrence of the herniation.
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.
Injuries/Mental Stress Injuries
potentially compensable in Indiana.
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.
Blood-Borne Pathogens (HIV, Hepatitis)
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.
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.
summoned to work are generally considered to be in the course of
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.
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.
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
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
such as salespeople are covered while traveling.
Work Outside of
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.
The aggravation of an existing condition by an injury arising out of
and in the course of employment is generally compensable.
DEFENSES TO CLAIMS FOR WORKER’S COMPENSATION
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
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
employee's knowingly self-inflicted injury,
commission of an offense (not including traffic infractions),
knowing failure to use a safety appliance
knowing failure to obey a reasonable written or printed
safety rule which has been posted in a conspicuous
position in the place of work, and
knowing failure to perform any statutory duty.
In asserting these
defenses, the employer has the burden of proving that the
misconduct caused the employee's injuries. To assert a defense
for failure to use a safety device, to follow a reasonable safety
rule, or to perform a statutory duty, the employer must prove that the
failure was knowing. Ind. Code §22-3-2-8.
Finally, in order
for the employer to raise any of the above defenses in a worker's
compensation hearing, the issue must be raised in a legal pleading
called a "special answer.” The special answer must be filed no
later than forty-five days prior to the date set for hearing,
unless good cause is show for a delay. If the employer wishes to
raise more than one of the six defenses, they must be raised
separately. The failure of the employer to timely raise the
defense waives the defense, unless the parties proceed to litigate
the defense at hearing. 631 IAC 1-1-8.
illustrate the statute.
EXAMPLE A: An
employee arrives at a job which involves driving a delivery truck.
The employee has just consumed a large quantity of alcohol and
realizes that he is very drunk. While making deliveries, the employee
blacks out and his truck runs off the road. Several tests revealed
that the employee's blood alcohol content was well above the legal
limit, and the employee admitted that his intoxication caused him to
black out. The employee applies for worker's compensation benefits.
Forty-five days before the hearing, the employer files a special
answer arguing that no compensation is payable because the employee's
injuries were due to his intoxication.
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.