The 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:
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.
The 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:
- Confidentiality clause which requires a forfeiture of the settlement payment in the event of a violation.
- Blanket release of any and all claims or release of rights other than those related to the worker’s compensation claim.
- Employee resignation as a condition of the settlement.
- 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.
- 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.)
How 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!
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.
Indiana 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.
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.”
Some 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.
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.
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.