State News : Indiana

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NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.  


Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.


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Indiana

JACKSON KELLY PLLC

The 2022 Indiana legislature enacted a clarifying change to the statute of limitations under the Worker’s Compensation Act due to recent challenges to a long-held practice honoring the Board’s position that plaintiffs have two years from the last date for which compensation has been paid for  an accepted injury claim to file its Application for Adjustment of Claim.

Statute of Limitations

I.C. 22-3-3-3, effective July 1, 2022, now confirms the two-year period within which an Application for Adjustment of Claim must be filed to begin running on the last day for compensation was paid after the occurrence of an accident for  which compensation is paid as temporary total or temporary partial disability benefits.

Increased Benefits

The Act was amended to increase temporary total disability and benefits for payment of permanent partial impairment beginning July 1, 2023 with regular 3% increases through 2026.

Contact Diana Wann:  diana.wann@jacksonkelly.com  for a schedule of rates and benefits through 2026.

Ambulatory Surgery Centers Included  in 200% of Medicare Cap

Ambulatory surgery centers were defined and included in the medical cap of 200% of Medicare reimbursement as used by CMS previously affecting hospitals only, effective January 1, 2023.

Clean Claim Provision Added, I.C. 22-3-7.2, Payments of Claims

Clean Claim payment deadlines were established, effective January 1,2023.

Two fairly recent cases, including a Court of Appeals decision, as well as an interesting but unappealed decision entered by the Full Worker’s Compensation Board, serve as instruction on the most basic analysis defense may make in an initial case review: whether the plaintiff’s case has been, or can be, timely brought.

Statutory Authority

The Indiana Worker’s Compensation Act provides medical benefits and compensation for disability and permanent impairment for employees who sustain “personal injury by accident arising out of and in the course of” a covered employment relationship. Upon notice of a reported or alleged accidental injury, the employer has a statutory duty to investigate the claim and to accept or deny the claim within certain time frames. Under the Act, two statutes govern the time frame in which the Board’s jurisdiction may be invoked by the employee. In cases in which no compensation has been paid or in which compensability is disputed, Ind. Code § 22-3-3-3 provides that the employee has two (2) years from the date of the alleged injury to file an action with the Board. That statute is a claims-made provision, is jurisdictional, and unlike some civil statutes of limitation, cannot be waived or tolled. Ind. Code § 22-3-3-3 is a nonclaim statute, as opposed to a general statute of limitations. It “forever” bars plaintiff’s claim after two years, which cannot be resurrected by waiver or stipulation.1

The Act also provides, however, that claims in which compensation has been paid may be reopened by the parties or modified by the Board “on account of a change of conditions.” Ind. Code § 22-3- 3-27. Section 27(c) provides that an Application to reopen such a compensable claim must be filed within two (2) years “from the last day for which compensation was paid” under the Act.

Practitioners are often uncertain as to which statute may govern a particular set of facts, often struggling to understand the rulings of single hearing members on the issue. In mid-2020, the Indiana Worker’s Compensation Board addressed a dispute regarding the applicable time limitations in a matter captioned Sampson v. Kova Ag Products, Inc. Although that matter was not appealed and the Board’s administrative decisions do not have precedential value, the Board’s decision in that matter may provide insight into the distinction between Ind. Code § 22-3-3-3 and Ind. Code § 22-3-3-27. Shortly thereafter, the Indiana Court of Appeals handed down an opinion in another time limitations case, Gilley’s Antique Mall v. Sarver, 157 N.E.3d 549 (Ind. Ct. App. 2020), trans. denied. These two cases illuminate the nuances in applying Ind. Code § 22-3-3-3 and Ind. Code § 22-3-3-27 and provide new guidance to even the most seasoned worker’s compensation professional.

Ind. Code § 22-3-3-3 Limitation For Filing Original Claim

Many worker’s compensation cases are initiated with the Board with the filing of an Application for Adjustment of Claim, the administrative equivalent of a complaint in a civil action. In cases that for any reason were not accepted as compensable by the employer, or in which no compensation was paid under the Act, the right to worker’s compensation is forever barred if an


Application is not filed within two years of the occurrence of the accident, or if death results therefrom, two years after such death. See Ind. Code § 22-3-3-3.

In the Gilley’s matter, the employee was injured on November 10, 2015 while working on a roofing project at Gilley’s Antique Mall for his employer, Humphrey’s Construction. The employee fell through a foam board covering a hole in the roof. Because Humphreys was uninsured, liability for the injury fell upon Gilley’s, as it had failed to secure a certificate that Humphrey’s had worker’s compensation insurance. The employee received medical treatment for multiple injuries, which may have been privately paid or may have remained outstanding, as there was a lack of worker’s compensation insurance coverage.

On May 17, 2017, the employee filed an Application with the Board naming the K & K Group2 as a defendant and seeking to recover compensation for the injuries of November 15, 2015. On March 19, 2018, he filed an amended Application asserting claims against Gilley’s and Jeff Line (later correcting Line to Hines), asserting that Humphrey’s did not have insurance coverage. Gilley’s and Hines filed Motions to Dismiss, alleging that the employee had failed to add them as defendants within the two-year limitation period provided at Ind. Code § 22-3-3-3.

A Board member granted the Motions, and Plaintiff sought review by the Full Worker’s Compensation Board. Following a hearing on December 6, 2019, the Full Board reversed the decision of the hearing member and, relying on 631 I.A.C. 1-1-7 governing the joinder of additional parties, determined the employee could add additional defendants at any time after his claim commenced, providing his initial Application against the statutory employer was timely filed, which it was.  Gilley’s and Hines appealed.

The Court of Appeals found that the Board had improperly relied on 631 I.A.C. 1-1-7. That provision allows for joinder of defendants and authorizes the Board “at any time, upon a proper showing, or of its own motion, to order any additional party be joined, when it deems the presence of the party necessary.” But, the Court noted, “there is no statutory authority for the Board to increase the length of time in the statute of limitations for filing claims.” With regard to the issue of timeliness of joining additional defendants, Sarver is a case of first impression, and emphasizes for practitioners the long-standing requirement that initial claims must be filed against the employer and all potential defendants within two years after occurrence of an alleged accidental injury.

Now to complicate things a little.

Claims May Be Reopened

As noted above, a worker’s compensation claim may be reopened for an alleged “change of conditions” under Ind. Code § 22-3-3-27:

(a) The power and jurisdiction of the worker’s compensation board over each case shall be continuing and from time to time it may, upon its own motion or upon the application of either party, on account of a change in conditions, make such


modification or change in the award ending, lessening, continuing, or extending the payments previously awarded, either by agreement or upon hearing, as it may deem just, subject to the maximum and minimum provided for in IC 22-3- 2 through IC 22-3-6.

…..

(c) The board shall not make any such modification upon its own motion nor shall any application therefor be filed by either party after the expiration of two (2) years from the last day for which compensation was paid. The board may at any time correct any clerical error in any finding or award.

Change of Condition Claim

In Gilley’s v. Sarver, no compensation was ever paid to the employee. As such, the employee was required by Ind. Code § 22-3-3-3 to file an Application no later than two years from the occurrence. In the matter of Sampson v. Kova Ag Products, however, the employee’s initial claim was accepted by the employer, which paid medical benefits and compensation under the Act. The latter is a typical scenario and is perhaps more common than the filing of an original Application in a disputed case. This fact distinguishes the Act’s two statutory times limitation provisions.

The majority of claims reported and overseen by the Indiana Worker’s Compensation Board (more than 56,000 annually), include a work injury report, employer-provided medical benefits, and compensation for disability and any resulting permanent injury. Accepted claims for work-related injuries are handled under the principal of the “great compromise”, the requirement that injured workers must accept and employers must pay prescribed benefits limited to employer-provided medical treatment, compensation for disability and compensation for permanent injuries. A liberal construction of the law is required to further the act’s humane purposes.

Routine Work Injury Claim

Sampson was injured while working for Kova Ag Products on August 19, 2015. He reported his injury to his employer and its insurance carrier, and his claim was accepted as compensable. The employer provided medical benefits under the Act and, pursuant to an Agreement to Compensation it prepared, paid Sampson compensation for Temporary Total Disability benefits (TTD). The employer then issued and filed a statutorily-required Notice on State Form 389113 that compensation for TTD would be discontinued as of November 8, 2016.

Plaintiff contended he was entitled to additional benefits or compensation under the Act and filed an Application with the Board on August 21, 2017 (amending it on August 23, 2018 to specifically allege a change in conditions). The Application was filed more than two years after the August 19, 2015 work injury, but less than two years after November 8, 2016, the last date for which compensation was paid.

Defendant moved to dismiss, asserting that the Application was untimely pursuant to Ind. Code § 22-3-3-3 because it was not filed within two years of the original accidental injury. A member of the Board denied the Motion to Dismiss, and the employer appealed to the Full Worker’s


3 Defense later contended TTD was not paid, despite its acknowledgment in filing the 1043 that TTD was paid.


Compensation Board. Following a hearing on August 31, 2020, the Full Board affirmed the hearing member, finding the Application was timely filed and remanding the case to the single hearing member for hearing on the merits. The Full Board’s decision was not appealed to the Courts and is now final. It may provide some insight into the Board’s analysis of the two distinct time limitation provisions contained in the Act.

Claim For Compensation

Ind. Code § 22-3-3-3 provides a jurisdictional two-year filing deadline for a “claim” under the Act. While attorneys may consider a “claim” to be a formal Application, in the context of the compensable claim in the Sampson matter, the Full Board, in a detailed decision, observed that a “claim” may include a formal filing, but may also include the reporting of an injury and the procedure of providing medical benefits and paying compensation to injured workers as prescribed by the Act. In this case, the Board found that the employer accepted and paid the employee’s claim until it discontinued compensation as of November 8, 2016. Up to that date, no dispute existed between the parties. Indeed, our Court of Appeals has held that during the time in which no dispute exists, the filing of an Application may be premature.4 The distinction is illustrated in these two cases: acceptance of compensability and payment of compensation in Sampson, as opposed to no compensation being paid to plaintiff in the Sarver matter.

In the Sampson matter, the Board found that compensation for TTD had been paid, so the employee had two years from the last date for which compensation was paid on November 8, 2016, to file an Application, and the August 21, 2017 filing was therefore timely.

Defendant Contended No Compensation for TTD Had Been Paid

Despite having accepted Sarver’s claim as compensable, and having paid compensation for TTD as documented in an Agreement to Compensation, the employer argued that since the Agreement to Compensation had not been “signed” by plaintiff and “approved” by the board, it did not constitute an agreement and its payments of TTD did not constitute “compensation” for purposes of determining the deadline for filing an Application under Ind. Code § 22-3-3-27. Defendant, relying on a 1925 case, attempted to argue that the payments it made to the employee as documented by its filed Agreement were “voluntary” and did not constitute “compensation” under the Act. Defendant argued that a formally signed and Board-approved agreement was required. The Board disagreed. Defendant paid and Sarver accepted payments for lost wages for a period of over one year and three months pursuant to an Agreement that Defendant itself had prepared. Furthermore, the board’s current practice of accepting compensation Agreements in electronic form (rather than paper copies circulated and filed by U.S. Mail) has evolved substantially since 1925.

 

 

 

 

 

 


4 Globe Valve Corp. v Thomas, 424 N.E.2d 155 (Ind. Ct. App. 1981).


History of Board Application of Change of Condition

In its decision, the Full Board recited its consistency over the years in deciding the timeliness of Applications to reopen claims. Indeed, the Board’s enabling statute, Ind. Code § 22-3-1-3, grants it the ongoing power and jurisdiction to modify or change awards – as long as an Application for same is otherwise timely filed. In both Fitzgerald v. U.S. Steel, 892 N.E.2d 659 (Ind. Ct. App. 2008), and Krause v. IUPUI, 866 N.E.2d 846 (Ind. Ct. App. 2007), Indiana Courts have upheld the ongoing jurisdiction of the Board over previous awards. As the Court noted in Krause, it upheld the Board’s allowance of an Application within two years of the last day for which compensation was paid in reliance on the Board’s interpretation of the statute it administers and “in light of its expertise.”

As the Board award noted, to find otherwise would result in an inhumane interpretation of the principle on which the Indiana Act, and similar laws nationally, were enacted. If not for the ongoing jurisdiction of the board under Ind. Code § 22-3-3-27, the workers most significantly impacted would be those severely and permanently injured for whom medical treatment and ongoing compensation for disability is routinely provided by statute for a period of years. If the employer’s arguments were adopted, those injured workers would be required to hire counsel and file Applications within two years of the original injury simply to avoid losing employer-provided medical care after two years, even in an otherwise accepted and compensable case. The result would be increased legal costs and litigation expenses to employers and employees alike, along with significantly increased and pointless litigation.

Instructive Guidance

The instructive guidance in these two cases clarifies and assists worker’s compensation attorneys in our ability to provide counsel to our clients and appropriately defend untimely filed cases.

Submitted by:

Diana L. Wann Jackson Kelly PLLC 317-695-0552

diana.wann@jacksonkelly.com 221 NW 5th St.

Evansville, IN 47706

On March 25, 2018, the General Assembly of the State of Indiana enacted Senate Bill 290.  Effective July 1, 2018, this bill enacts the following Workers’ Compensation changes:

1.       Provides that the following must be tendered to an employee not later than fifteen (15) days after the date of the physician’s statement (ref. § 22-3-3-10.5):

A.      A proposed permanent partial impairment agreement

B.      The associated physician’s statement required

C.      The employee waiver of examination

D.      A hand/foot chart, if necessary

2.       A permanent partial impairment agreement signed by the employee, along with the supporting documentation, must be submitted to the Workers’ Compensation Board for approval not later than fifteen (15) days after the date of receipt from the employee (ref. § 22-3-3-10.5).

3.       Not later than thirty (30) days after the date the Workers’ Compensation Board approves the permanent partial impairment agreement, one of the following amounts must be paid (ref. § 22-3-3-10.5):

A.      The first weekly installment of a compensation for permanent partial impairment

B.      The lump sum, if the compensation is to be paid in a lump sum

4.       Voluntary Settlement Agreements.  Provides that payment of compensation under a settlement agreement must be made not later than thirty (30) days after the date the Workers’ Compensation Board approves the agreement (ref. § 22-3-2-15).

5.       Notice; Workers’ Compensation Coverage.  Requires an employer that has mobile or remote employees to convey information about Workers’ Compensation coverage to the employer’s employees in an electronic format or in the same manner as the employer conveys other employment related information (ref. § 22-3-2-22).

6.       Payments; Total Disability; Waiting Period.  Allows the electronic filing of a temporary total or partial disability compensation agreement with the Board (ref. § 22-3-3-7).

7.       Payments; Second Injuries.  Provides that permanently, totally disabled worker must reapply to the second injury fund for wage replacement benefit every three (3) years instead of every 150 weeks (ref. § 22-3-3-13)

8.       Payments; Time of Payment.  Provides that an award of compensation ordered by a single hearing member of the Workers’ Compensation Board must be paid not later than thirty (30) days after the date of the award, or as the award provides, if the award is not appealed to the full Board (ref. § 22-3-3-24).

9.       Report of Injuries and Deaths.  Requires the reporting of workplace injuries needing medical attention beyond first aid instead of injuries causing an absence from work for more than one day.  Provides that reporting requirements for workplace injuries are intended to be consistent with the recording requirements set out in the United States Occupational Safety and Health Administration’s regulations (ref. § 22-3-4-13).

10.   Workers’ Occupational Disease Compensation; Reports of Disablements.  Requires the reporting of workplace injuries needing medical attention beyond first aid instead of injuries causing an absence from work for more than one day.  Provides that reporting requirements for workplace injuries are intended to be consistent with the recording requirements set out in the United States Occupational Safety and Health Administration’s regulations (ref. § 22-3-7-37).

 

EFFECTIVE DATE

July 1, 2018

 

Indiana Court of Appeals Upholds Order of TTD Owed for Period During Which Employee Terminated for Misconduct 

The Indiana Court of Appeals has clarified an issue long disputed by the Indiana worker’s compensation community.  That is, whether TTD (temporary total disability)  is owed when plaintiff is unavailable for work for reasons unrelated to the injury per I.C. 22-3-3-7(c).  In this case employee had been terminated for misconduct.  Employee contended he could not do the fully duty work he had been released to do resulting in a verbal altercation with his supervisor in which he cursed and threw an ice pack.  The court affirmed the Board decision ordering payment of temporary total disability benefits from the date of injury to the date of decision and ongoing.

In Masterbrand Cabinets v. Waid, Court of Appeals Case No. 93A-1609-EX-2228, the court confirmed that I.C. 22-3-3-7(c), allows termination of TTD benefits where the employee is unable or unavailable to work for reasons unrelated to the injury (i.e., termination of employment for misconduct), but noted that the statute does not require the work to be for the same employer as when the employee was injured.  Rather, the court determined that even though the employee was terminated from his employment, the relevant inquiry is whether his inability to work, even for other employers, was related to his injury.  Since his inability to work was related to his injury, and his termination occurred prior to having received any TTD benefits (there was no “termination of benefits” involved), Waid’s termination for misconduct did not prevent him from receiving TTD benefits as a result of his injury.  The court’s language stating the relevant inquiry is whether the inability to workany job is related to employee’s injury would appear to apply to instances where employee’s work has been terminated with the relevant employer regardless of  the basis and whether voluntary or involuntary.

 

INDIANA WORKER’S COMPENSATION UPDATE
AUGUST 2012
Recent changes at the Indiana Worker’s Compensation Board are immediately affecting the handling of claims and filing of forms by Indiana adjustors. Out of state adjustors must be especially careful to stay attuned to Board activity by regularly visiting the Indiana Worker’s Compensation Board’s website at http://www.in.gov/wcb/. Also, be sure you are registered on the Board’s electronic notification list in order to receive updates.

FULL TIME COMPLIANCE OFFICER
The Board now has a full-time compliance officer, Alan Buckley. He is charged solely with analyzing forms and submissions and determining if there is any basis for levying a fine under the Board’s authority. The Board’s representative will carefully scrutinize the completion of forms, timing of filing forms, and information contained in the forms in order to determine if the Board can impose monetary fines associated with the filing of the forms (any such fines will generate funds for the operation of the Board and its staff). So be aware and be careful. Some of the topics presented follow:

NEW FORMS FOR DENIAL OF CLAIM OR EXTENSION OF TIME TO CONTINUE INVESTIGATION
Notice of Denial of Benefits (State Form 53914) and Notice of Inability to Determine Liability/Request for Additional Time (State Form 48557).
These forms have been modified to convey the medical-only aspect of a claim. The Board’s intention is to avoid issuance of penalties on cases which appear to have not been timely filed when the delay was for a medical-only period which preceded a period of disability. The new forms gather information which would make these reasons readily identifiable and preclude assessing fines which will be appealed by the employer/carrier.
(Make copies of these forms and begin using immediately…. Must be in use by September 27, 2012)

TERMINATION OF BENEFITS, FORM 38911
These forms are being scrutinized and returned for failure to complete the dates. The last date TTD was paid must be stated.

UTILIZATION REVIEW
The Board made clear that utilization review is acceptable in certain cases. It should not be used to limit valid medical care but may be used to keep medical treatment from getting out of hand. Carefully consider why you are having a case reviewed and determine if your reason falls within this latter category. Be mindful of the fact that if a test/procedure is recommended by an authorized physician, the Board will attach significant deference to that recommendation, and any decision to deviate from the test/procedure will be closely scrutinized.

BOARD “HOLD” POLICY ON LITIGATED CASES
The Board has authorized its hearing officers to designate a case for the newly-created “Hold Docket.” On this docket a case will not be set for hearing and will be reviewed once a year for a status report. Either party may request it be removed from the hold docket and placed back in the hearing stream. There is a specific pleading for this. Cases which may be placed in this “hold” position fall into the following categories:
1) Medicare – pending CMS approval or future medical evaluation or appeal.
2) Authorized Medical Care is being provided on an ongoing basis and benefits are being paid.
3) Protective Filings – A case is filed to protect the statute of limitations but is being handled elsewhere, i.e., Longshoreman’s Act cases.
4) Second Injury Fund Cases.

CHANGES EFFECTING UR/ODG USE AND CHARGES FOR BOARD OMBUDSMEN AS MEDIATORS
The following additions to the Indiana Administrative Code have been implemented and effect UR/ODG use and charges for board ombudsmen serving as mediators.
(11) Utilization review. The board recognizes the Utilization Review Accreditation Commission's (URAC) Workers' Compensation Management 2008 guidelines to medical utilization practices, as well as the Official Disability Guidelines (ODG) published by the Work Loss Data Institute and the American College of Occupational and Environmental Medicine (ACOEM) guidelines. Recommendations from these, and other, reputable sources may be offered as one (1) form of evidence regarding appropriate medical care; however, it will not be considered as conclusive evidence by the single hearing member or the full board.
(Worker's Compensation Board of Indiana; 631 IAC 1-1-32; filed May 4, 2012, 10:15 a.m.: 20120530-IR-631110357FRA)
631 IAC 1-1-33 Fees for mediation by the board
Authority: IC 22-3-4-4.5
Affected: IC 22-3-1-3; IC 22-3-4-5
Sec. 33. The charge for mediation by a qualified employee of the board shall be a flat fee of three hundred fifty dollars ($350) for five (5) hours of mediation, with an hourly rate of fifty dollars ($50) for each hour thereafter. No travel expenses will be paid by the parties. (Worker's Compensation Board of Indiana; 631 IAC 1-1-33; filed May 4, 2012, 10:15 a.m.: 20120530-IR-631110357FRA)

Questions: 
Contact: Diana L. Wann
Phone: (765) 362-7553
dlw@rfpj.com