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.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
Effective 1-1-23 – Ambulatory Outpatient Surgery Centers (ASC) are added to the definition of “medical service facility” under the worker’s compensation law. ASC’s will be reimbursed at the 200% of Medicare rate for the same procedure provided in the same facility on the same day.
IC 22-3-10 is amended to increase compensation payable for permanent impairment for injuries:
Degrees of July 1, 2023 July 1, 2024 July 1, 2025 July 1, 2026
Impairment:
1 – 10 $1,803 per $1,857 per $1,913 per $1,970 per
degree degree degree degree
11 – 35 $2,011 per $2,071 per $2,133 per $2,197 per
degree degree degree degree
36 – 50 $3,282 per $3,380 per $3,481 per $3,585 per
degree degree degree degree
Above 50 $4,182 per $4,307 per $4,436 per $4,569 per
degree degree degree degree
The maximum average weekly wage for determining compensation of permanent impairment, temporary total disability and temporary partial disability is increased for injuries occurring on and after July 1, 2023, occurring on and after July 1, 2024, occurring on and after July 1, 2025, and occurring on and after July 1, 2026:
Maximum average weekly wage:
July 1, 2023 July 1, 2024 July 1, 2025 July 1, 2026
$1,205 $1,241 $1,278 $1,316
The maximum compensation payable, exclusive of medical benefits, is increased for injuries occurring on and after July 1, 2023, occurring on and after July 1, 2024, occurring on and after July 1, 2025, and occurring on and after July 1, 2026:
Maximum compensation, exclusive of medical benefits:
July 1, 2023 July 1, 2024 July 1, 2025 July 1, 2026
$402,000 $414,000 $426,000 $439,000
IC 22-3-7-16 and IC 22-3-7-19 of the Occupational Diseases Act are amended to provide the same increase in benefits for disablements occurring on and after July 1, 2023, on and after July 1, 2024, on and after July 1, 2025, and on and after July 1, 2026. §4.8
Case Law Update:
Reported Case:
Palmer v. Ake, 181 N.E.3rd 421(Ind. App. 2021). In Palmer the Plaintiff was working on the roof of a pole barn and was injured when part of the building collapsed. The building was located on property owned by Ake who was the owner of Fas-Pak, Inc., a company that is in the business of liquid filling and packaging. Ake stated that it was his intent to use the pole barn for vehicle repairs and storing equipment. Some of the pole barn would be used by his family for personal reasons.
Palmer sued in state court for negligence and Ake filed a motion to dismiss claiming that Palmer’s exclusive remedy was worker’s compensation. The trial court granted the motion to dismiss for want of subject matter jurisdiction.
In reversing the trial court, the Court of Appeals used the factors discussed in Moberly v. Day, 757 N.E.2d 1007(Ind. 2001) (discussed in this Section) where the Supreme Court set forth a ten factor analysis that is used by courts to determine whether one acts as an independent contractor or employee. The court then concluded that majority of the factors favored independent contractor status, specifically the fact that the Plaintiff worked as a laborer/carpenter on a project, that Plaintiff had specialized skills and experience in carpentry work, used his own tools, and did not perform continuous service for Ake. §3.8
Special Analysis of Memorandum Case:
The Court of Appeals in a memorandum decision issued a decision in 2021 that is of interest to practitioners. While a memorandum decision may not be cited as authority, in Allen v. Smithfield Packaged Meatgroups, Corp., 173 N.E.3rd 1076 (Ind. App. 2021), the court addressed the issue of whether a worker can sue their employer in court for negligence if the employer asserts an affirmative defense pursuant to IC 22-3-2-8 in the worker’s compensation claim. Simply stated, IC 22-3-2-8 bars compensation if the injury is due to the employee’s knowingly self-inflicted injury, commission of an offense, knowing failure to use a safety appliance, knowing failure to obey a reasonable written rule of the employer which has been posted in a conspicuous position in the place of work, or the employee’s knowing failure to perform any statutory duty. The burden of proof is on the defendant.
In Allen, the worker suffered injury when her left arm became caught in a conveyor belt. Allen filed a claim for worker’s compensation; however, the defendant alleged the affirmative defense that Allen knowingly failed to use a safety appliance and knowing failed to use a safety appliance, and the failures caused the injury. Allen then filed a claim for negligence in the Miami Superior Court claiming that the employer waived the exclusivity of the Indiana Worker’s Compensation Act by invoking fault as a defense under IC 22-3-2-8. The trial court dismissed Allen’s negligent action for want of subject matter jurisdiction.
In affirming the trial court’s dismissal for lack of subject matter jurisdiction, the court pointed out that Allen cited no authority supporting the argument that when an employer raises an affirmative defense under IC 22-3-2-8 the exclusivity provision of the Act no longer applies. The court also noted that whether the affirmative defense applies is litigated in the worker’s compensation proceeding. Finally, the court reminded that if Allen does not prevail in front of the single hearing member, she has the right to have the decision reviewed by the Full Board, the Court of Appeals and finally the Indiana Supreme Court.
This decision addresses the question that has pended a long time amongst worker’s compensation practitioners. That is, whether the affirmative defenses listed in IC 22-3-2-8 causes what may be a compensable injury to no longer be compensable. The holding in Allen, again not precedent, suggests that while an injury may be compensable, the IC 22-3-2-8 affirmative defenses act simply as a bar to compensation. The injury is compensable, but compensation is barred.
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