• Compensation Due Dates

    January 15th, 2018

    Indiana Workers Compensation Due DatesHow long could you go without a paycheck? For most of us, it would not be more than a week or two.  The Indiana Worker’s Compensation Act has long provided deadlines for the payment of temporary total disability (TTD) compensation. But, the Act has not required that payments of permanent partial impairment (PPI) compensation, Awards or settlements be made within a certain time.  It is likely that deadlines for such payments will be legislatively established in 2018, as follows:

    • PPI – Within 30 days of the date, the Form 1043 Agreement for PPI was approved.
    • Awards – Within 30 days of the date of the Award or as the Award otherwise provides.
    • Settlements – Within 30 days of the date the settlement agreement was approved.

    Regarding the payment of temporary total disability compensation, the Indiana Worker’s Compensation Act requires:

    • The first payment of TTD compensation is due at the end of the second week of TTD and is payable within 14 days thereafter.
    • Subsequent payments of TTD compensation are payable weekly following the first payment.
    • Compensation for the first week of TTD is due and payable after the 21st day of disability.  

    These TTD payment dates assume that a Form 48557 Notice of Inability to Determine Liability/ Request for Additional Time has not been filed.  

    The late payment of TTD compensation is subject to the assessment of a civil penalty.  It is likely that a similar penalty will be legislatively added for the failure to timely pay PPI compensation, Awards, and settlements.  Of course, where there is no doubt about the obligation to pay a statutory benefit, sooner is always better!

    TTD Termination Due To Employee Misconduct

    August 14th, 2017

    TTD Termination Due To Employee Misconduct

    Temporary Total Disability (TTD) compensation is payable when an employee is unable to perform his or her regular work due to a compensable injury.  IC 22-3-3-7 (c) (5) allows for the termination of TTD where “the employee is unable or unavailable to work for reasons unrelated to the compensable injury.”  Some employers have taken the position that said statutory section applies where the employment has been terminated due to employee misconduct. The recent Court of Appeals decision in Masterbrand Cabinets v. Waid holds otherwise.

    Waid had a compensable injury and had been released to return to his regular work by the company doctor. He did so but complained that he was in pain and needed restrictions. He got into an argument with his supervisor and threw his ice pack. His actions resulted in his employment being terminated. The company doctor imposed work restrictions when he next evaluated Waid. Masterbrand took the position that it did not owe TTD because Waid was unavailable for restricted work for reasons unrelated to the compensable injury since Waid was no longer an employee.

    The Court of Appeals held that IC 22-3-3-7 (c) (5) does not require that the work be for the same employer as when the employee was injured. So, even though Waid had been let go by Masterbrand, “the relevant inquiry is whether his inability to work, even for other employers, was related to his injury.” Since the Board had found that Waid was unable to perform work of the same kind or character as that which he had performed for Masterbrand and thus met the definition of TTD, the Court of Appeals concluded that TTD was payable despite Waid’s termination for misconduct.

    Employers need to anticipate the possibility for disagreements related to post-injury returns to work and be prepared to diffuse such disagreements before the situation escalates. When faced with an employee’s claim that the return to work, whether regular or light duty, is difficult or impossible due to the work injury, the most reasonable course to take is to remove the employee from the work and return the employee to the company doctor for a re-evaluation of the employee’s ability to work. The exposure to some TTD compensation is preferable to an altercation at work and a termination of employment which results in the loss of the employer’s right to tender appropriate work in lieu of TTD.

    The Problem with Zero Percent Permanent Partial Impairment (PPI) Ratings

    July 19th, 2017

    The Problem with Zero Percent Permanent Partial Impairment (PPI) RatingsIndiana Worker’s Compensation law requires that the employer to ask the attending physician for an opinion as to whether a work-related injury has resulted in a permanent loss of physical function. The attending physician will sometimes respond by indicating that there is a 0% permanent partial impairment (PPI). That response is the equivalent of an opinion that there has been no permanent loss of function.  

    The employee has the right to an alternative opinion as to the permanent loss issue from a doctor of his own choosing at his own expense.  If the employee’s doctor finds a permanent loss of function and assigns a PPI rating for that loss, then a dispute as to the existence and extent of the permanent injury exists. The usual practice is to agree to a split of the ratings in a resolution of the impairment dispute.

    If the employer is unwilling to consider the employee’s alternative PPI rating, then the Worker’s Compensation Board will evaluate the evidence and make a determination. The first question for the Board’s determination is whether there has been a permanent loss of physical function. If the Board finds that there has been a permanent loss of physical function, then the second question for the Board’s determination is the proper amount of PPI to be awarded.  

    If the Board determines that there has, in fact, been a permanent loss of physical function despite the attending physician’s 0% PPI opinion, then the employer is at an evidentiary disadvantage as to the second question; the amount of PPI to be awarded. This is because the only evidence as to the amount of the PPI sustained is the employee’s alternative PPI rating. While a 0% PPI rating may be evidence that there has been no permanent loss of physical function, it is not evidence as to the amount of PPI to be awarded if the Board finds that there has been a permanent loss of physical function.  

    Medical Implants in Indiana Worker’s Compensation Act

    May 12th, 2017

    Many employees have medical implants which may be affected by work-related activities.  The Indiana Worker’s Compensation Act provides:  

    “If an accident arising out of and in the course of employment after June 30, 1997, results in the loss of or damage to an artificial member, a brace, an implant, eyeglasses, prosthodontics, or other medically prescribed device, the employer shall repair the artificial member, brace, implant, eyeglasses, prosthodontics, or other medically prescribed device or furnish an identical or a reasonably equivalent replacement.”  

    Medical Implants Workers Compensation ActSome implants may be predictably harmed by passive exposure to magnets or electrical currents in the workplace.  But, if the employee is unaware of such exposure and the employer is unaware of such implant, then the risk of harm may not be avoided.  Thus, it makes sense for the employer to investigate and disclose employment exposures damaging to implants and for employees to request appropriate accommodations for their implants.  In that way, a certain risk of harm may be avoided.  If an employee is placed in a job with an accommodation designed to prevent damage to the implant and the implant is inadvertently damaged despite such accommodation, then the damage would likely be the equivalent of an injury by accident/unexpected injury and the statutory requirement for repair or replacement would apply.

    Unauthorized Medical Treatment – Indiana Worker’s Compensation Act

    March 24th, 2017

    Unauthorized Medical Treatment - Indiana Worker's Compensation ActThe Indiana Worker’s Compensation Act requires that an injured employee’s compensable medical care be provided by medical providers who have been authorized by the employer.  There are three exceptions; those being in the case of an emergency, or where the employer has refused to provide medical treatment, or “because of any other good reason”.  It is the “other good reason” exception which comes up most often when the attending physician deems the employee’s injury to be at maximum medical improvement and the employee thereafter pursues unauthorized medical treatment.

    The Indiana Supreme Court has established three tests for the employee to meet in order to claim from the employer the cost of unauthorized medical treatment:

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    Recreational Activity and Compensability

    December 13th, 2016


    An employer’s arrangement for or involvement in its employee’s recreational activity can create worker’s compensation liability. There is nothing wrong with employees engaging in activity outside of the workplace and work time. But, even incidental employer participation in such activity can be deemed to have created an employment related risk in the course of the employment.

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    Gordon v. Toyota | Indiana Court of Appeals

    October 5th, 2016


    Indiana Court of Appeals
    Decided April 19, 2016

    Indiana Code 22-3-3-11 provides that if an injured employee refuses employment suitable to his capacity procured for him, then he shall not be entitled to compensation during the period of refusal.  Most employers are aware of this provision, but are not quite so cognizant of some qualifying provisions which require that 1) the employee must be served with a notice setting forth the consequences of refusal and 2) the Board may determine whether or not the refusal was justifiable.

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    What people want in their Indiana Worker’s Compensation Act

    May 17th, 2016

    What people want in their Indiana Worker's Compensation ActDo you ever wonder how statutory changes to the Indiana Worker’s Compensation Act come about? The answer is that people suggest changes to their legislative representatives. Those people can include associations of people, too, like the Indiana Chamber of Commerce, the Indiana Manufacturers Association, the Insurance Institute of Indiana, the Indiana Worker’s Compensation Board, the Indiana Hospital Association, the Indiana State AFL-CIO, the Indiana State Building Trades and many other organizations. Your Indiana Self-Insurers Association participates in that process on your behalf as well. But, we need to know what YOU want; you are OUR people.

    Here are some of the things that other people want right now:
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    Medical Cost Containment Legislation

    December 22nd, 2015
    Medical Cost Containment Legislation

    Medical Cost Containment Legislation

    Many in the worker’s compensation community are concerned by the continued rates of increase in medical costs in Indiana as compared to other states. The Indiana legislature passed a “Fee Schedule” in 2013 which became effective on July 1, 2014. That legislation was the subject of a prior ISIA Newsletter. So, why is it that W/C medical expenses continue to increase? The answer depends on the nature of the provider of W/C medical services.

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    Employee Unavailability for Work in Indiana

    November 20th, 2015

    When a work related injury occurs an employer may avoid paying or may terminate the payment of Temporary Total Disability (TTD) compensation by tendering to the employee light duty work which is within the restrictions assigned by the attending physician. Such a tender of light duty work is not mandatory; it is within the employer’s discretion. If light duty work is not available or is not tendered, then TTD compensation must be paid until 1) light duty work becomes available and is tendered, or 2) the employee is released to the regular work or 3) the injury has been deemed to have reached its Maximum Medical Improvement.

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