State News : Indiana

Indiana Court of Appeals Upholds

Indiana W.C. Board On Issue of

Work vs. Personal Risk

In a surprising Memorandum (not precedential) decision, the Indiana Court of Appeals detailed a seldom-addressed work risk vs. personal risk issue.

In Harold E. Smoot v. Lowe’s, 25-A-EX-929, the court found the Indiana Worker’s Compensation Board, in finding plaintiff’s fall from a stool he was sitting on while working with a resulting femur fracture, was caused solely as the result of his diabetes, low blood sugar, and personal decision not to avail himself of his allowed breaks to eat as needed, was correct in that plaintiff meet his burden to support a finding otherwise.

The claim was found not compensable by both the single hearing member and, in review, by the full board.  The court, affirming, discussed risks incidental to the employment and the question of whether Smoot’s risk of injury was personal to him.  It examined the evidence including plaintiff’s health condition, the employer’s accommodations to him allowing him to take breaks when needed, eat candy or snacks at the register while working to adjust his blood levels, and providing him a chair or stool to sit on while working as a cashier.  Despite these accommodations, plaintiff failed use them and make the necessary adjustments to his day to prevent low blood sugar and resulting weakness, causing him to stumble and fall resulting in his injury, a purely personal risk.

Is injured worker failing to report to offered light duty work, or failing to keep medical appointments or schedule medical procedures recommended by the authorized treating physician for work injury care?  A valuable tool in Indiana to control uncooperative employees is the ability of the adjustor or defense attorney to suspend benefits under Indiana Code 22-3-3-11 for not reporting to light duty work, and 22-3-3-4(c) for refusing medical treatment or services.

Often simply noticing the injured employee, in writing, of the plan to suspend TTD and/or medical treatment is enough to convince the employee that compliance is mandatory.  The Indiana Board Form, 54217, is available on the Indiana Board website, www.wcb.in.gov, and must be submitted in completed form to the Board through 1) the adjustor portal or 2) by the defense attorney, with copy to the injured worker or its attorney, and benefits may be suspended.   Only when the injured employee begins complying, benefits are reinstated.

Memorandum Decision Only Indiana Court of Appeals 

David Vass v. Barklay Purkans, LLC 23A-EX-2090 

Although a memorandum-only decision, this Indiana Court of Appeals case supported medical treatment following a finding of maximum medical improvement and PPI award by the Board, but held fast to the Board’s decision plaintiff was not temporarily totally disabled during the ongoing treatment, which took place over several years.  

This case had a long history following a compensable worker’s compensation injury occurring in 2014. The original knee injury resulted in a total knee replacement.  However, plaintiff had  ongoing complaints of pain, contending he was unable to work for that reason, despite having been released to full duty work by the treating physician and by a subsequent IME  physician.  Examinations were normal and physicians could identify no medical reason plaintiff could not work.  As a result, he had no medical evidence taking him off work, despite continuing medical attention.  In a 2018 decision the Single Hearing Member found claimant was at MMI in 2017, was not entitled to additional TTD benefits, assigned a 31% PPI of his right leg and retained jurisdiction over the matter. 

In subsequent appearances, the judge issued an order requiring plaintiff to participate in an FCE, his refusal to attend the FCE previously recommended.  Eventually, the treating physician began a course of conservative treatment for IT Band syndrome with a later recommendation the plaintiff have IT band surgery, which was done in 2023.  Following an additional hearing the judge concluded the ITB surgery was necessary to limit or reduce the 31% PPI, which is allowed under the Indiana Worker’s Compensation Act following a PPI award, and denied plaintiff’s request for additional TTD based on its conclusion he had reached MMI in 2017.  

The Court of Appeals upheld the decision of the Indiana Board, supporting appropriate post MMI/PPI palliative medical care and supporting no TTD owed following that finding given the consistent medical opinions plaintiff could work.