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“The only thing necessary for these diseases to the triumph is for good people and governments to do nothing.”

    


Guide To Indiana

Worker’s Compensation

http://www.state.in.us/

Frank O’Bannon, Governor

G. Terrence Coriden, Chairman, Worker’s Compensation Board of Indiana

Other Publications on Indiana Worker’s Compensation

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 1-800-562-1197, or write to: Lexis Law Publishing, P.O. Box 7587, Charlottesville, VA, 22906-7587.

Open Lines, 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.

The Indiana 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:

Worker’s 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.

Those 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.

Therefore, 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 publication.

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.

Sincerely,

G. Terrence Coriden

Chairman

TABLE OF CONTENTS    

            MEDICAL BILLING AND HEA 1772

            FORMS

      Independent Contractor Affidavit of Exemption (45899)

      Employer’s Report of Injury/Illness of Employee (34401)

      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)

      Notice for Worker’s Compensation/Occupational Disease Coverage

     Notice for Worker’s Compensation/Occupational Disease Coverage  

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 Washington Street and West Street in downtown Indianapolis.

Mailing Address

Worker's Compensation Board of Indiana

402 West Washington Street Room W-196

Indianapolis, Indiana  46204

 

Telephone Numbers

Administrative Division

(317)232-3808

Office of the Executive Secretary

(317) 232-3809

Ombudsman Division

(317) 232-5922 or (800) 824-COMP

Data Services Division

(317) 233-4930

Insurance Division

(317) 232-3982

PREFACE

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. 

While the information here is based on the Indiana Worker's Compensation and Occupational Diseases Acts, 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 the Worker's Compensation Board.

I.          INTRODUCTION 

History

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. 

Worker's 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.

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 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.

When a 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 compensation judge.

How to Order a Copy of the Act

A volume 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.

Political Structure of the Indiana Worker’s Compensation Board

The Worker's 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 Administrative Code.

Board members have the authority to hear, determine, and review all claims for worker's compensation and 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.

Agency Staff Functions

The Worker's 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 Board.

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 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.  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. 

The Data 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.

The 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.  

To determine 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. 

The 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).

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-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.

Which State 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 liability.   

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 than Indiana.     

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.

Although some 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 circumstances.

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 worker’s compensation.

2.      Employment that are not covered by worker's compensation.

3.      Employment that are not automatically covered, but that 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 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.

(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 therefore 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 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.

(9)   Volunteer Firefighters/Emergency Medical Technicians:  Volunteer 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.)

(10) Recipients 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.

        (11) 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 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 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.

Currently, 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. 

3.      Real Estate Professionals.  Real estate professionals are not employees, and therefore are not covered under Indiana worker's compensation if:

(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 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 construction trades. 

      An injured 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.

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.  See page 13.

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 the 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 could potentially be considered an employee.

Employment 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.  

1.     Local police 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. 

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 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. 

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 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.

7.     Owner operators.  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).

8.     Members/managers 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 §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 is concerned with the service rendered or work done, rather than with the temporary nature of the employment contract. 

2.     Household Employees.  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 should be covered by worker’s compensation insurance. 

 

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. 

Agricultural 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. 

·        ·        If 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.

 

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.

How to Elect Worker’s Compensation Coverage for Casual Laborers, Farm/Agricultural Employees, and Household Employees

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.  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 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 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.

Independent 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.  

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) 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 Indiana employer-employee relationship, even if the worker has also filed the Independent Contractor Affidavit.

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).

Ind. Code §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.

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 affidavits from workers who are, in fact, employees may not be held harmless in a worker’s compensation action.

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 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.

Employee Lending

In Indiana, 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.

Joint Employment

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.

III.       INSURANCE

Insurance Required

All Indiana 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. Code §22-3-5-3.

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 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).  

Finally, an 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. 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.

"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 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 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. 

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 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.

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 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. 

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 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 worker’s compensation.

Repetitive Trauma 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.

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 there was some kind of unusual stress or exertion that triggered the heart attack.

Hernia cases 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 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 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.

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, and

6)    due to a 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 separatelyThe 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.

Two examples 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.