• Indiana EDI 3.1 Workers Compensation Reporting

    August 15th, 2019

    EDI 3.1

    How are you doing with EDI 3.1?  Indiana is one of the first States to implement this reporting format.  Our Indiana Worker’s Compensation Board has tried to limit the information requested and some States ask for even more detail.  If you have any questions or issues with EDI 3.1, please feel free to contact the Indiana Worker’s Compensation Board (David Babcock or Jake Forte) for assistance.  The start date for possible statutory penalties is December 1, 2019.

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    Kids Chance of Indiana Annual Golf Outing

    May 21st, 2019

    Linda Peterson Hamilton, Chairman
    WORKERS COMPENSATION BOARD
    402 West Washington Street, Room W196
    Indianapolis, Indiana 46204-2753
    Telephone: (317) 232-3808
    http://www.in.gov/workcomp

    What happens when a child loses a parent to a work-related fatality? What happens when that family’s main source of income ends to their children’s educational opportunities and aspirations?

    Kids Chance of Indiana (KCIN) is a non-profit that provides college and vocational scholarships to eligible children of Indiana workers who were totally disabled or fatally injured due to a work-related accident. Established in 1996, KCIN has awarded over 125 scholarships totaling more than $280,000.00, averaging approximately $2,400.00 per student.

    But there is so much more we could achieve. KCIN would like to increase the number of scholarships awarded each year and raise the average amount awarded to $5,000.00, thereby further reducing our students unmet needs. It would take an additional $30,000 to $50,000 annually which, with the generosity of potential corporate partners and donors like you, we believe we can realize.

    Please consider supporting KCIN as a corporate sponsor or by participating in our golf outing, which is our primary annual fundraiser. Click Read More for additional information regarding that event and sponsorships.

    Further if you have a referral or knowledge of a child impacted by a fatal or totally disabling injury of a parent from an Indiana work accident please let me know so we can reach out to them. You can additional information on our website, https://www.kidschancein.org.

    Thank you for your consideration and if you interested in sponsoring or have any questions regarding this worthy organization please contact Darren Dye at [email protected] or (317) 233-3394.

    Darren Dye
    Vice-President Kids’ Chance of Indiana

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    Light Duty Work Tender

    April 2nd, 2019

    An employer has the right to avoid the payment of Temporary Total Disability (TTD) compensation to an injured employee by tendering to the employee suitable light duty work.  If the employee refuses such light duty work, then the payment of TTD compensation may be suspended during the period of refusal. This seems simple enough, but there are two important restrictions before a suspension will be valid.

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    Indiana Worker’s Compensation Board Members

    March 13th, 2019

    The Indiana Worker’s Compensation Board is made up of seven persons appointed by the Governor of Indiana.  The seven persons must be Indiana attorneys in good standing and are referred to as members of the Board. One of the members is designated as the chairman of the Board and is primarily responsible for the administration of the Board’s activities.  The remaining six members are assigned to the six Statewide hearing districts and are primarily responsible for the adjudication of compensation disputes in those districts. All seven members constitute the full Worker’s Compensation Board for the purpose of appeals from hearing member awards.

    There have been some recent changes in Board members.  Doug Meagher has been appointed to District 5. (This is member Meagher’s second appointment to the Board.)  Kyle Samons has been appointed to District 6. Sandra O’Brien has been appointed to District 1. All three appointees have substantial experience regarding worker’s compensation law and procedure and are excellent additions to the Board.

    Nurse Case Manager Guidelines

    December 21st, 2018

    The Indiana Worker’s Compensation Board website contains guidelines regarding the role of a nurse case manager (NCM) in Indiana worker’s compensation cases.  If you use a NCM in the administration of a worker’s compensation claim, you should be sure that your NCM is aware of and is in compliance with these guidelines in the course of delivering NCM services to your injured employee.

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    Permanent Partial Impairment Ratings

    November 14th, 2018

    Permanent Partial Impairment RatingsThe Indiana Worker’s Compensation Act (Indiana Act) does not designate the use of any particular rating guide for the assessment of a Permanent Partial Impairment (PPI) rating.  Many medical providers are familiar with the AMA Guides to the Evaluation of Permanent Impairment (AMA Guides) and the Indiana Worker’s Compensation Board (Board) has long accepted references to the AMA Guides in support of PPI ratings.  It is possible that in the future the Board will require that PPI ratings be based upon the AMA Guides so as to avoid a medical opinion report which assigns a PPI rating without any objective support. Even so, there are certain areas where the use of the AMA Guides may not be appropriate:

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    New Requirements For Settlement Agreements

    August 14th, 2018

    There are many occasions where good faith disputes require a compromise resolution. The primary format for such resolution is commonly referred to as the “Section 15” agreement.

    IC 22-3-2-15 is the statutory authority for such an agreement.  Section 15 requires that such an agreement be approved by a member of the Worker’s Compensation Board and that such member should not approve an agreement which is not in accordance with the rights of the parties pursuant to the Worker’s Compensation Act.

    New Requirements For Settlement AgreementsThe Section 15 settlement process can be abused when it forecloses the legitimate non-disputed rights of an employee, where the consideration is inadequate, or where other unrelated employee rights are adversely affected. The Worker’s Compensation Board has created a checklist for settlements. The checklist is posted on the Board’s website.

    Compliance with the checklist will make the preparation of Section 15 and other settlement agreements more time-consuming. But, the additional information required by the checklist will give to the Board member an accurate basis upon which to consider and approve the settlement. Section 15 agreements with unrepresented employees will require compelling evidence of the dispute and the adequacy of the money to be paid. A Section 15 agreement should give consideration to the length of time within which the claim may be reopened and the likelihood and value of the additional benefits which may be due within that time. Section 15 settlements in otherwise compensable claims will be closely scrutinized.

    In addition to the checklist, the Board has identified several areas which are NOT appropriate for inclusion in a Section 15 or other settlement agreement:

    1. Confidentiality clause which requires a forfeiture of the settlement payment in the event of a violation.
    2. Blanket release of any and all claims or release of rights other than those related to the worker’s compensation claim.
    3. Employee resignation as a condition of the settlement.
    4. Waiver of the statutory right to reopen the claim where the claim was otherwise compensable and statutory benefits are being paid pursuant to the settlement agreement.

    The Board is also working on a procedure whereby settlement agreements and orders in litigated cases will be electronically transmitted to the appropriate hearing member for review and approval. Settlements in non-litigated claims will be electronically transmitted to an “Accident Files” mailbox for handling. The effective date for this approval process will be announced by the Board in the future.

    2018 LEGISLATIVE CHANGES

    March 9th, 2018

    2018 Indiana Workers Compensation Legislation ChangesIn addition to the legislative changes mentioned in the last ISIA Newsletter, the following changes relating to the Indiana Worker’s Compensation Act have been passed in the 2018 legislative session:

    • An employer with mobile or remotely based employees shall convey the required Worker’s Compensation Notice to such employees in an electronic format or in the same manner as the employer conveys other employment-related information.  (This method for notice is in addition to the posting of the Worker’s Compensation Notice for fixed situs employees.)
    • The permanent partial impairment (PPI) rating assigned by the attending physician must be tendered to the employee within 15 days after the date of the PPI report. The tender would include a properly completed Form 1043 Agreement for Permanent Partial Impairment, the PPI report, a Form 53913 Employee Waiver of Examination by Personal Physician and an amputation chart (page 2 of Form 2118 Physician’s Report), if necessary.   When the signed Form 1043 Agreement for PPI is received from the employee, it must be submitted to the Worker’s Compensation Board for approval within 15 days of the date it was received from the employee. (This is intended to avoid delays in the PPI agreement process.  The failure to comply with the 15-day deadlines may constitute a lack of diligence.)
    • A self-insured employer is required to electronically submit Form 34401 First Report of Injury to the Board within 7 days after the employer’s knowledge of an injury, either actual, alleged or reported, that causes an employee’s death or the need for medical treatment beyond mere first aid.  (There will no longer be a requirement of more than one day of disability before the First Report of Injury must be submitted.  Insured employers submit the First Report of Injury to their insurer.)  The “beyond first aid” reporting requirement so established is meant to be consistent with the reporting requirement set out in the OSHA regulations. (29 CFR 1904.7)
    • The definition of an employer has been clarified to make clear that a corporation, limited liability company or limited liability partnership that controls the activities of another corporation, limited liability company or limited liability partnership, or a corporation and a limited liability company or a corporation and a limited liability partnership that are commonly owned entities, or the controlled corporation, limited liability company, limited liability partnership , or commonly owned entities and a parent corporation and its subsidiaries shall each be considered joint employers of the corporation’s, the controlled corporation’s, the limited liability companies’, the limited liability partnerships’ the commonly owned entities’, and the parent’s or subsidiaries’ employees for the purposes of the exclusive remedy protection of the Indiana Worker’s Compensation Act.  (The addition of limited liability companies, limited liability partnerships and controlled and commonly owned entities clarify the application of the exclusive remedy to forms of business like the parent and subsidiary form of business.)

    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.