DEFINITIONS

Employer

The term employer includes the state and any political subdivision, any municipal corporation within the state, any individual or the legal representative of a deceased individual, firm, association, limited liability company, or corporation or the receiver or trustee of the same, using the services of another for pay. I.C.§22-3-6-1(a).

A parent corporation and its subsidiaries shall each be considered joint employers of the corporation’s, the parent’s or the subsidiaries’ employees for the purposes of the exclusive remedy and contributions of compensation sections under the Indiana Workers’ Compensation Act.I.C.§22-3-6-1(a).

If the employer is insured, the term includes the employer’s insurer so far as applicable. However, the inclusion of an employer’s insurer within this definition does not allow an employer’s insurer to avoid payment for services rendered to an employee with the approval of the employer.I.C.§22-3-6-1 (a). Agreement signed by employer’s insurance carrier agreeing to pay benefits to claimant was binding on the employer in the absence of mistake, fraud or duress since the statutory definition of employer includes the employer’s insurer. R. L. Jeffries Trucking Company v. Cain, 454 NE 2d 582 (1989).

Employee

Employee means every person, including a minor, in the service of another, under any contract of hire, or apprenticeship, written or implied, except one whose employment is both casual and not in the usual course of the trade, business, occupation, or profession of the employer. I.C.§22-3-6-1 (b).

An executive officer elected or appointed and empowered in accordance with the charter and bylaws of the corporation, other than a municipal corporation or governmental subdivision or a charitable, religious, educational, or other non-profit corporation is an employee of the corporation. An officer of a corporation who is the sole officer of the corporation is an employee of the corporation but may elect not to be an employee of the corporation. If an officer makes this election the officer must serve written notice of the election on the corporation’s insurance carrier and the board. An officer of a corporation who is the sole officer of the corporation may not be considered to be excluded as an employee until the notice is received by the insurance carrier and the board. I.C. §22-3-6-1 (b) (1).

An executive officer of a municipal corporation or other governmental subdivision or a charitable, religious, educational, or other non-profit corporation may be brought within the coverage of its insurance contract by the corporation by specifically including the executive officer in the contract of insurance. The election to bring the executive officer within the coverage shall continue for the period the contract of insurance is in effect, and during this period, the executive officers thus brought within the coverage of the insurance contract are employees of the corporation. I.C. §22-3-6-1 (b) (2).

An owner of a sole proprietorship, a partner in a partnership, and a member or manager in a limited liability company may elect to include the owner, partner, member, or manager, as an employee if they are actually engaged in the business. If the individual makes this election, they must serve upon the company’s insurance carrier and upon the Workers’ Compensation Board written notice of the election. They cannot be considered an employee until the notice has been received. I.C. §22-3-6-1 (b) (4), I.C. §22-3-6-1 (b) (5), and §22-3-6-1 (b) (9).

An officer of a corporation is an employee and is entitled to immunity under the fellow of employee rule regardless of his dual capacity. Rodgers v. Hembd, 518 NE 2d 1120 (1988).

It is assumed that the legislature’s exclusion from Indiana Workers’ Compensation Act of certain employees indicates its intent to include all other employees. Rensing v. Indiana State University Board of Trustees, 437 NE 2d 78 (1982), vacated 444 NE 2d 1170 (1983).

To fall within the casual employment exception, the employee must be one whose employment is not only casual but also not in the usual course of employment. An employee otherwise covered is not excluded unless both of these elements of the exception apply. Hale v. Kemp, 579 NE 2d 63 (1991)

The word casual, as used in the Indiana Workers’ Compensation Act, is used in its usual and ordinary sense and meaning, and means happening or coming to pass without design, and without being foreseen or expected, coming without regularity, occasional, incidental, liable to happen, subject to chance or accident, uncertain, having the air of chance or incidental occurrence. Coffin v. Hook, 45 NE 2d 369 (1992).

Independent Contractor

A person is an independent contractor and not an employee for the purposes of the Indiana Workers’ Compensation Act if the person is an independent contractor under the guidelines of the U.S. Internal Revenue Service. I.C. §22-3-6-1.

Indiana has adopted a Ten (10) Factor Test to distinguish employees from independent contractors, which include each of the following:
a) the extent of control which, by the agreement, the master may exercise over the details of the work;
b) whether or not the one employed is engaged in a distinct occupation or business;
c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by specialists without supervision;
d) the skill required of the particular occupation;
e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
f) the length of time for which the person is employed;
g) the method of payment, whether by the time or by the job;
h) whether or not the work is a part of the regular business of the employer;
i) whether or not the parties believe they are creating the relation of master and servant;
j) whether the principal is or is not in business.

Carroll v. Kamps, 795 F Supp. 2d 794 (N.D. Ind. 2011).

Joint Employee

Both the lessor and the lessee of an employer shall each be considered joint employers of the employees provided by the lessor to the lessee. I.C. §22-3-6-1 (a).. Employee placed with an employer by an employee leasing service could not sue the employer for negligence when the employee was hurt because, under I.C. §22-3-6-1 (a)., the leasing service and the employer were joint employers who are each entitled to enforce the exclusive remedy provision of I.C. §22-3-2-6, since the statutory reference in I.C. 22-3-6-1 (a). to the lessor and lessee of employees was not intended to be a term of art that excluded employees. Kenwal Steel Corporation v. Seyring, 903 NE 2d 510 (2009).

Whenever an employee for whose injury or death compensation is payable under the Indiana Workers’ Compensation Act shall at the time of the injury be in the joint service of two or more employers, such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employees; provided, however, that nothing in this section shall prevent any reasonable arrangements between such employers for a different distribution as between themselves of the ultimate burden of compensation. I.C. §22-3-3-31.

In a dual employment situation the important issue is whether both employers possess a substantial, but not necessarily exclusive, right or power of control over the employee and the mean, manner and method of his performance. Walters v. Modern Aluminum, 699 NE 2d 671 overuled in part, G.K.N. Company v. Magnus 744 NE 2d 397 (2001). The right of control is the most important factor in determining the existence of an employment relationship, G.K.N. Company v. Magnus, 744 NE 2d 397 (2001).

EXCLUSIVE REMEDY

General Rule

The rights and remedies granted to an employee under the Indiana Workers’ Compensation Act on the count of personal injury or death by accident shall exclude all other rights and remedies of such employee, the employee’s personal representative, dependents, or next of kin, common law or otherwise, on account of such injury or death except for remedies available under the Indiana’s Compensation for Victims of Violent Crimes Act. I.C. §22-3-2-6.

The Indiana Workers’ Compensation Act is the exclusive remedy available to injured employees if the injury suffered was
1)       accidental
2)       arose out of the employment relationship and
3)       occurred in the course of employment

Crowe v. Blum, 9F 3rd 32, (7th Circ. Ind. 1993).

Exceptions Recognized

There is no intentional tort exception to the Compensation Act, but the Act by its terms does not bar certain intentional tort actions; because injuries intentionally inflicted by an employer are not “by accident”, suits arising therefrom are not barred by the Compensation Act. Baker v. Westinghouse Electric Corp., 637 NE 2d 1271. Intentional torts of employers are not covered by the Workers’ Compensation Act, but the employer must harbor the intent to injure, not merely a supervisor, manager or foreman. Coble v. Joseph Motors, Inc., 695 NE 2d 129 (1998).

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

Generally, the Indiana Workers’ Compensation Act applies to every employer and employee whether injury by accident or death resulting from such injury occurs within the state or in some other state or in a foreign country. I.C. §22-3-2-20. Also, Hagenbeck v. Leppert, 117 N.E. 531 (Ind. App. 1917)

Extraterritorial Jurisdiction

Where injuries occur outside of the state of Indiana, jurisdiction may exist nonetheless to file a claim under the Indiana Workers’ Compensation Act when the employee resides within the state of Indiana; where there is an employment contract (written, oral or impled), Elkhart Sawmill Co. v, Skinner, 42 N.E. 2d 412 (Ind. App. 1942); the employee performs work in the state, Finkel v. General Acci Fire & Life Assurance Corp., 231 F.2d 307 (7th Cir. 1956); or the employer insured workers compensation liability through contract of insurance in the state, Ben Wolf Truck Lines v. Bailey, 1 N.E. 2d 660 (Ind. App. 1936).

The employee may have the right to file a claim for benefits in all states in which there might be coverage. However, it is unlawful for an employee to receive benefits under the Indiana Workers’ Compensation Act at the same time the employee receives workers compensation benefits for the same injury under laws of any other state. See, 8 A.L.R. 628 (Voluntary payment of compensation under statute of one state as bar to claim or ground for reduction of claim of compensation under statute of another state.

Time Limitation

The Indiana Workers’ Compensation Act provides that an employee must furnish notice to their employer of an injury within thirty (30) days of the injury or as soon as practicable. The exception to the notice requirement exits if the employer has actual knowledge of the occurrence. I.C. §22-3-3-1

No compensation shall be paid until and from the date such notice is given or knowledge obtained. However, no lack of knowledge by the employer or his representative, and no want, failure, defect or inaccuracy of the notice shall bar compensation, unless the employer shall show that he is prejudiced by such lack of knowledge or by such want, failure defect or inaccuracy of the notice, and then only to the extent of such prejudices. I.C. §22-3-3-1. See also, State v. Gageby, 184 N.E. 190 (Ind. App. 1933) (burden of proof to show prejudice is on the employer).

Notice of Injury

The notice shall state the name and address of the employee, the time, place, nature and cause of the injury or death, and shall be signed by the injured employee or by someone on his behalf and should be personally served upon the employer, supervisor, or designated representative. I.C. §22-3-3-2.

Statute of Limitations

Indiana Workers’ Compensation Act provides that in order to be entitled to benefits, an Application for Adjustment of Claim must be filed within two (2) years from the date of occurrence of the accident. I.C. §22-3-3-3. Ingram v. Land-Air Transp. Co., 537 N.E.2d 532 (Ind. App. 1989).

Occupational Disease Claims

Compensation for occupational diseases may not be payable under the Act unless the disease leads to disablement (inability to work) occurs within two (2) years after the last day of the last exposure to the hazards of the disease except for the following,
a)       inhalation of silica dust or coal dust which is three (3) years after the last day of the last exposure to the hazards of the disease I.C. §22-3-7-9 (f)(1),

b)       exposure to radiation within two (2) years from the date on which the employee had knowledge of the nature of the employee’s occupational disease or, by exercise of reasonable diligence, should have known of the existence of such disease and its causal relationship to the employee’s employment I.C. §22-3-7-9 (f)(2),

c)       inhalation of asbestos dust within three (3) years after the last day of the last exposure to the hazards of the disease (before July 1, 1985) or twenty (20) years after the last day of the last exposure (between July 1, 1985 and July 1, 1988), or thirty-five (35) years after the last day of the last exposure (after July 1, 1988) I.C. §22-3-7-9 (f)(3-5).

d) in the case of cumulative trauma or repetitive stress injuries, two years from date of the original occurrence (explained in further detail in Cumulative Trauma or Repetitive Stress Injuries below)

Extension of Limitation

Change of Condition

If a claimant alleges that there was a change in condition of injury resulting from prior occurrence, the Application for Adjustment of Claim must be filed within two (2) years from the date for which compensation was last paid I.C. §22-3-3-27 Tom’s Chevrolet Sales v. Curtis, 147 N.E.2d 571 (Ind. App. 1958)

Limitations on time to file an Application do not run against a person who is a minor or who is mentally incompetent so long as such person has no guardian or trustee. I.C. §22-3-3-30.

Cumulative Trauma or Repetitive Stress Injuries

In the case of cumulative trauma or repetitive stress injuries, the Indiana courts have ruled that where an employee is exposed to ongoing cumulative or multiple trauma, the injury does not occur until the last exposure or trauma occurs or diagnosis is made and thus there can be an extension of the limitation period of two years from date of the original occurrence due to cumulative effect of prior injuries and repetitive heavy lifting that are part of day to day job duties. Inland Steel Co. v. Pavlinac, 865 N.E. 2d 690 (Ind. App. 2007).

COMPENSABILITY

General Rule

The Indiana Workers’ Compensation Act provides compensation for personal injury or death by accident that arises out of and occurs in the course of employment. I.C. §22-3-2-2.?

“Injury”Defined

Indiana defines “injury” and “personal injury” as only injuries by accident arising out of and in the course of the employment and do not include a disease in any form except as it results from the injury. I.C. §22-3-6-1(e). The courts have interpreted this to include not only physical injuries, but repetitive injuries, as well as mental injuries, so long as the employee can prove that such injuries occurred by accident arising out of and in the course of their employment. See Hansen v. Von Duprin, Inc., 507 N.E.2d 573 (Ind. 1983); Four Star Fabricators v. Barrett, 638 N.E.2d 792 (Ind. Ct. App. 1994).

Types of Injuries

Accident Not Required

An employee does not need to be injured as the result of “an accident,” rather the employee must sustain injury “by accident.” The phrase “by accident” refers to an unexpected injury or death rather than an unexpected event. Savich v. Blaw-Knox Foundry & Mill Machinery, Inc., 501 N.E.2d 464 (Ind. Ct. App. 1986). In Indiana, it is not necessary for the employee to prove that he/she was injured as the result of a specific event or definable occurrence so long as the employee can prove the injury occurred by accident in the course of and arising out of his/her employment.

Infectious Diseases

Employees exposed to a highly contagious or infectious disease can be entitled to benefits under the Indiana Workers’ Compensation Act if the employee can establish that the exposure was by accident and arose out of and occurred in the course of his/her employment. An employee may also receive an award for future medical expenses, or palliative care, if the disease is one which may not manifest itself for many years. For example, an employee who contracted hepatitis C was entitled to ongoing medical care for the conditions, symptomatology and testing for the disease as recommended by his treating physicians. Bloomington Hospital v. Stofko, 705 N.E.2d 515 (Ind. Ct. App. 1999).

Heart attacks

Heart conditions, or heart attacks, are only compensable if shown to have arisen out of and occurred in the course of employment. For example, where an employee died of a heart attack while attempting to extinguish a fire, the injury was found to have arisen out of the employment, even though employee had a pre-existing heart condition, because the evidence showed that the fire, and the employee’s attempt to extinguish it, triggered the heart attack. Bertoch v. NBD Corp., 813 N.E.2d 1159 (Ind. 2004). On the other hand, the mere showing that an employee was performing his usual every day tasks when he suffered a fatal heart attack is not compensable when the evidence showed that the heart attack may have happened while the employee was working, driving his car, sitting or even sleeping. United States Steel Corp. v. Dykes, 154 N.E.2d 111 (Ind. 1958). But, if the employee can show that an increase in work load beyond the heart’s ability to function and not by a decrease in the heart’s ability to meet an unchanged demand was the cause of a heart attack, the claim would be deemed compensable. Consumers Co. v. Jefferson, 209 N.E.2d 32 (Ind. App. 1965).

Psychological Injury

A psychological injury suffered by accident while in the course of and arising out of employment will be deemed compensable in Indiana. There does not need to be a physical injury that occurs simultaneously for the psychological injury to be compensable. The Indiana Supreme Court has explained, “[w]hether the injury is mental or physical, the determinative standard should be the same. The issue is not whether the injury resulted from the ordinary events of employment. Rather, it is simply whether the injury arose out of and in the course of employment.” Hansen v. Von Duprin, Inc., 507 N.E.2d 573 (Ind. 1987). Even if an employee has a condition that makes him more susceptible to suffering a psychological injury, he is entitled to recovery for the full extent of the injury received. Hansen, 507 N.E.2d at 577; citing Bethlehem Steel Corp. v. Cummings, 310 N.E.2d 565 (Ind. App. 1974).

There are three different ways in which a psychological injury can be compensable in Indiana:
1.       A physical injury caused by psychological trauma if the employee can prove that the stimulus or stress arises out of and in the course of employment.
2.       Where the employee has sustained a physical worker’s compensation injury and the injured worker’s disability is prolonged or impairment is increased by an an accompanying psychological dysfunction, the full extent of the injury, both physical and mental, may be compensable.
3.       When the employee suffers from a pre-existing psychological condition which are aggravated or precipitated by a physical injury and trauma may be found compensable to the full extent of the aggravation of the pre-existing psychological condition.

Occupational Diseases

Employees exposed to an “occupational disease” are covered in Indiana under a separate act most commonly known as the “Occupational Disease Act.” An employee’s claim brought under the Occupational Disease Act is also administered by the Indiana Worker’s Compensation Board. An “occupational disease” is defined as a “…disease arising out of and in the course of employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident of an occupational disease as defined in this section. I.C. §22-3-7-10. Thus, to be compensable, the occupational disease must be shown to arise out of and in the course of employment.

There are some differences between the Occupational Disease Act and Indiana Workers’ Compensation Act. First, disablement under the Occupational Disease Act is defined as “…becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease by the employer from whom he claims compensation or equal wages in other suitable employment…” I.C. §22-3-7-9. The language “last exposed” limits the employee’s claim only against the employer known to have caused the last exposure, not all past employers who may have also caused exposure.

Second, the statute of limitations is calculated differently than under the Indiana Workers’ Compensation Act, and also depends upon the type of disease suffered:
a)       Compensation for occupational diseases may not be payable unless the disease leads to disablement within two (2) years after the last exposure to the hazard.
b)       In cases of disease caused by the inhalation of silica or coal dust, the limitation period is three (3) years from the last day of the last exposure to the hazard.
c)       When an employee is exposed to radiation, the limitation period is (2) years from the date on which the employee had knowledge of the nature of the occupational disease or, by exercise of reasonable diligence, should have known of the existence of the disease and its causal relationship to employment.
d)       In cases where the employee’s disease is caused by inhalation of asbestos dust, the limitation period is three (3) years from the last day of exposure, if the last date of exposure was before July 1, 1985. If the last date of exposure is on or after July 1, 1985, but before July 1, 1988, the limitations period is twenty (20) years after the last date of exposure. If the last date of exposure is on or after July 1, 1988, the limitations period is thirty-five (35) years after the last date of exposure.

I.C. §22-3-7-9.

EXCLUSIONS AND DEFENSES

Course of Employment

Pursuant to I.C. §22-3-2-2, employers must pay the compensation and benefits provided under the Act when the following four elements of a worker’s compensation claim are met.
1.       personal injury or death;
2.       by accident;
3.       arising out of the employment; and
4.       in the course of employment.

An injury "arises out of the employment" when there is a causal relationship between the injury sustained and the work or duties performed by the employee. Tom Joyce 7Up Co. v. Layman, 44 N.E.2d 998 (Ind. App. 1942). This causal relationship is established when a reasonably prudent person considers an injury incidental to employment at the time of entering into it or when the facts indicate a connection between the condition under which the employee works and the injury. "In the course of employment" typically means that the accident causing injury occurred at a time and a place at which the employee would reasonably be expected to be in connection with this job. Auto Owners Ins. Co. v. L.P. Cavett Co., 882 F.2d 1111 (7th Cir. 1989).

Engaged in the Furtherance of Employer’s Business

If the injury occurs while an employee is furthering an employer’s business, and if the injury meets all other requirements of the Act, it will be compensable regardless of whether it occurred on or off the employer’s premises. Pittsburgh Testing Laboratories v. Kiel, 167 N.E.2d 477 (Ind. App. 1960). Likewise, if an employee is directed, while on the way to or from work, at home, or during employment, to conduct some duty or special errand connected with employment or for the benefit of the employer, coverage will be extended under the “special errand” exception and the conduct found to be in the course of scope of employment. Keller v. H. P. Wasson, 153 N.E.2d 386 (Ind. App. 1958); see also, Williams v. School City of Winchester, 10 N.E.2d 314 (Ind. App. 1937).

Deviation from Route

If the employee deviates from work activities and an injury occurs, the injury may not be considered to arise in the course of employment. If the employee deviates from a route for personal reasons, even if the employee is on company time, or in a company vehicle, the employee might be considered outside of the course of employment. In re Betts, 118 N.E. 551 (Ind. App. 1918). However, as soon as the employee returns from the deviation, he or she is back in the course of employment. Capital Paper Co. v. Conner, 144 N.E. 474 (Ind. App. 1917).

To and From Employment

Traveling Employees

Requirement that an employee's injury arise out of the employment is relaxed when applied to cases involving traveling employees. Suburban Ready Mix Concrete, (Div. of Terre Haute Concrete) v. Zion by Zion, 443 N.E.2d 1241 (Ind. App. 1983). Those employees required to travel as a component of their job, such as salespeople, are covered and considered in the course of employment while traveling so long as away from home for the benefit of the employer. Olinger Constr. Co. v. Mosbey, 427 N.E.2d 910 (Ind. App. 1981). Coverage will still be extended to a traveling employee even if engaged in a task incidental to his health, comfort, or convenience.Id

Lunch Period

A very general rule on injuries occurring on an employee’s lunch hour is that the employee is covered while eating lunch on the employer’s premises and at a place generally considered safe with employer’s consent. Reed v. Brown, 152 N.E.2d 257 (Ind. App. 1958); United States Steel Corp. v. Cicilian, 180 N.E.2d 381 (Ind. App. 1962)

Personal Needs

Activities undertaken for the employee's personal needs, comfort, and convenience are considered within the course of employment. In other words, injuries occurring when the employees get up to get a drink or a snack, to stretch, or to go to the bathroom, are probably covered

Ingress and Egress

The time required to enter and exit the employment premises is generally covered as an employment related risk. Ward v. Tillman, 386 N.E.2d 1003 (Ind. App. 1999).

Premises and Parking Lot Cases

Injuries in parking lots or on premises owned or supervised by the employer are generally considered to be covered, even if the accident occurs before the employee clocks in or after the employee clocks out. Burke v. Wilfing, 638 N.E.2d 865 (Ind. App. 1994).

Recreational Activities, Employer-Sponsored Parties

Injuries occurring at recreational activities connected with the employment or where attendance is encouraged or mandatory may be compensable where the activity is sponsored by the employer, and where the event produces some benefit to the employer. Injuries may not be compensable if the activity is undertaken voluntarily by the employee. Ski World Inc. v. Fife, 489 N.E.2d 72 (Ind. App. 1986).

Work Outside of Scheduled Hours

An injury occurring outside of work hours can still be found compensable if it is caused by the employment and if it occurs at a time and place where the employee might reasonably be found, for example performing tasks at the direction of the employer. Indiana Bell Tel. Co. v. Ernst, 444 N.E.2d 1258 (Ind. App. 1983).

Outside Course of Employment

Heart Attacks

Typically, a heart attack is not deemed compensable under Indiana worker’s compensation law simply by showing that it occurred while the employee was at work. An injured worker must establish, from a medical and/or factual standpoint, that there was some event or stimulus, beyond the normal work routine, that resulted in the heart attack. United States Steel Corporation v. Dykes, 154 N.E.2d 111 (Ind.1958); Bertoch v. NBD Corp. and U.S. Security, Inc., 813 N.E.2d 1159 (Ind. 2004).

Horseplay

A worker injured while participating in horseplay is not entitled to worker's compensation unless he is an innocent victim of another person’s horseplay. In re Loper, 116 N.E. 324 (Ind. App. 1917). However, if the employer acquiesces in the horseplay (allows the horseplay to proceed without intervening), the injury may be compensable. Pepka Spring Co. v. Jones, 371 N.E.2d 389 (Ind. App 1978).

Intentional Injuries by Co-Worker

Injuries intentionally caused by managers, supervisors, or foremen are generally covered by worker’s compensation. Fey v. Bobrink, 151 N.E. 705 (Ind. App. 1926). In the case of an assault, the aggressor, if injured, is usually considered to be outside of the course of employment. Armstead v. Sommer, 131 N.E.2d 340 (Ind. App. 1956). The innocent victim of an assault by a fellow employee is generally covered if the assault arose out of the employment and work being performed. Fey v. Bobrink, 151 N.E. 705 (Ind. App. 1926).

Intentional Injuries by Employer

The Indiana Workers’ Compensation Act is not a bar to a civil action brought by an employee who suffered an intentional injury by the employer if she can establish that the employer committed the act and intended the injury or knew that the injury was certain to occur. Foshee v. Shoney’s, 637 N.E.2d 1277 (Ind. 1994).

Neutral Risk

The neutral risk doctrine divides risks incidental to employment into three categories:
(1) risks distinctly associated with employment,
(2) risks personal to the claimant, and
(3) risks of neither distinctly employment nor distinctly personal in character. Milledge, 784 N.E.2d at 930; Kovatch v. A.M. Gen., 679 N.E.2d 940, 943 (Ind. Ct. App. 1997), trans. denied. Risks of neither distinctly employment nor distinctly personal character are considered neutral risks. Risks that fall within categories numbered one and three are generally covered under the Indiana Workers’ Compensation Act. However risks personal to the claimant, those “caused by a preexisting illness or condition unrelated to employment,” such as idiopathic falls, are not compensable. Kovatch, 679 N.E.2d at 943. To demonstrate an entitlement to worker’s compensation benefits, an employee must meet her burden of proof to demonstrate the injury arose from a neutral risk (or that the risk is distinctly associated with employment). Employers may argue that where both personal risk and neutral risk present possibilities for the injury, failure to prove a neutral risk should result in a denial of compensability. Pavese v. Cleaning Solutions, 894 N.E.2d 570, 578 (Ind. Ct. App. 2008).

Pre-existing Conditions

Pre-existing conditions and diseases unrelated to the employment are not covered by the Indiana Workers’ Compensation Act. Burdette v. Perlman-Rocque Co., 954 N./E.2d 925 (Ind. App. 2011). An aggravation of a prior injury or condition is covered if the aggravation occurs by accident, arising out of and in the course of employment. However, the employer is only responsible for the part that was aggravated and the increase in impairment that may result. The extent of aggravation is typically left up to a doctor to clarify. PS2, LLC v. Childers, 910 N.E.2d 809 (Ind. App. 2009).

Defenses

Indiana worker's compensation is theoretically a no-fault insurance system, in which the injured worker is provided a remedy regardless of negligence or fault. Ind. Code §22-3-2-8, however, contains several “affirmative defenses” to claims for worker’s compensation.

The employer may utilize the following defenses where the employee’s injury or death is
1)       due to the employee's knowingly self-inflicted injury,
2)       due to intoxication
3)       due to the commission of an offense (not including traffic infractions)
4)       due to a knowing failure to use a safety appliance
5)       due to a knowing failure to obey a reasonable written or printed safety rule which has been posted in a conspicuous position in the place of work, or
6)       due to a knowing failure to perform any statutory duty.

In asserting these defenses, the employer has the burden of proving that the misconduct caused the employee's injuries. Jones ex rel. Jones v. Pillow Express Delivery, Inc., 908 N.E.2d 1211 (Ind. App. 2009). To assert a defense for failure to use a safety device, to follow a reasonable safety rule, or to perform a statutory duty, the employer must prove that the failure was knowing. Ind. Code §22-3-2-8; Inland Steel Co. v. Lambert, 118 N.E.2d 162(Ind. App. 1917).

Self-Inflicted Injury

Where the employee’s injury did not arise out of the course and scope of employment but was intentional self-inflicted, benefits are not owed under the Act. Henry v. Schenk Mechanical Contractors, Inc., 346 N.E.2d 616 (Ind. App. 1976).

Intoxication

Ind. Code §22-3-2-8 provides that benefits are not owed if the employee's accident was caused by intoxication. A positive drug test alone might not provide a defense to a worker's compensation claim as it must be shown that an employee was
1) intoxicated at the time of the accident and
2) that the intoxication caused the injury. Dane v. Trucking Co. v. Elkins, 529 N.E.2d 117 (Ind. App. 1988).

Commission of an Offense

The commission or a misdemeanor or felony by the injured workers may be a bar to compensation if it is shown that the violation/offense was the proximate cause of the injury. Anti-Mite Engineering Co. v. Peerman, 46 N.E2d 262 (Ind. App. 1943); Hass v. Shrader’s Inc., 534 N.E.2d 1119 (Ind. App. 1989).

Knowing Failure to Use a Safety Appliance or to Obey Reasonable Rule

If an employee’s injury is caused due to her failure to use a required safety appliance or piece of equipment, or due to her failure to follow a safety procedure or rule, benefits may be denied under the Act. The employer must show that it was a known requirement and that it did not permit or acquiesce to the failure by employees. Wimmer Temporaries, Inc. v. Massoff, 740 N.E.2d 886 (Ind. App. 2000); Indianapolis Light & Heat Co. V. Fitzwater, 121 N.E. 126 (Ind. App. 1918).

BENEFITS

Calculation of Average Weekly Wage

In Indiana, the employee’s average weekly wage (AWW) are the “earnings of the injured employee in the employment in which the employee was working at the time of injury during the period of fifty-two (52) weeks immediately preceding the date of injury divided by fifty-two (52).” I.C. §22-3-6-1(d). Exceptions to this general rule follow in I.C. §22-3-6-1(d)(1-4).

Total Disability

Temporary Total Disability

In Indiana, an injured worker is entitled to temporary total disability benefits (TTD benefits) generally so long as there is a wage loss attributable to the injury. An employee is entitled to be paid wage loss benefits at the temporary total disability rate when the employee is either totally impaired from performing any and all occupations or is unable to perform the same or similar job held while injured. An employer may mitigate his liability for TTD benefits by providing light duty work within the restrictions placed upon by the employee by the treating physician

If the employee misses more than 7 consecutive days of work, the Employee is owed TTD benefits beginning on the 8th day off work. The Employer has until the 14th day off work to begin payments. (I.C. §22-3-3-7.) If Employee misses more than 21 days of work, the employer must then pay for first 7 days missed of work. Further, by fourteenth day of disability, the employer must send Agreement to Compensation of Employee & Employer Form 1043 which confirms the average weekly wage and the temporary total disability rate. In case of death, the Agreement to Compensation between Dependents of Deceased Employee & Employer Form 18875 must be sent to the employee’s dependents. The employee (or, in case of death, his dependents) must sign and return the form to the employer or its insurance carrier. The employer or its insurance carrier will then need to sign the Form 1043 or Form 18875 and send it to the Board for filing.

If Employee fails to return Form 1043 or refuses to sign, the Form 1043 should be sent to the to Board with cover letter stating Employee never returned signed copy or refused to sign.

Permanent Total Disability

An employee may be permanently and totally disabled and unable to return to work in any capacity. If so, he is entitled to a maximum of 500 weeks of benefits at the TTD rate. The 500 weeks can be paid either at the weekly TTD rate for the duration of the award or in a lump sum. If the 500 weeks of TTD are paid in a lump sum, the employer is entitled to a discount. I.C. §22-3-3-25.

An employee who is permanently and totally disabled is not entitled to a permanent partial impairment benefits.

Partial Disability

Impairment Rating

After the injured worker reaches medical quiescence for a compensable injury and is not permanently and totally disabled, the employer or its insurance carrier must have the treating physician opine as to whether employee suffered permanent impairment from injury. If the treating physician refuses to assess the employee for an impairment rating, the employer or carrier should request that another physician to examine employee for purposes of assessing the employee for a permanent partial impairment (PPI) rating. The physician often uses the AMA Guidelines to Permanent Impairment to determine the impairment; however, the Indiana Workers’ Compensation Act does not specify that the guidelines be used nor does the Act specify which edition of the guidelines that the physician must use to assess the impairment.

While injuries to the knee and below and elbow and below are body part specific injuries, back, neck, hip and shoulder injures are to be converted to the whole person by the doctor pursuant to the Board’s directive. The compensation schedule assigning value to impairment ratings is listed in I.C. 22-3-3-10. Compensation is calculated based on the date of loss.

If an injured worker is paid more than 125 weeks of TTD, the employer is entitled to take a credit in the amount of the additional TTD paid against the PPI rating that may be assessed

Once the impairment rating is assessed, the employer may either pay the rating, leave claim open potential for additional benefits to be requested or pay PPI rating plus additional consideration for full and final settlement on Section 15 settlement agreement. The latter of these options requires retention of counsel to prepare settlement paperwork.

If the injured worker accepts PPI benefits without additional compensation, the employer may send the Agreement to Compensate Form 1043, Employee Waiver of Examination by Personal Physician Form 53913 and physician’s report establishing the impairment rating to employee for signature and file forms with Board for approval prior to payment

Vocational Rehabilitation

Vocational rehabilitation is not required in Indiana.

Return to Work with Loss of Earnings

While continuing to treat for the compensable injury, if the injured worker returns to work light duty for less hours than he worked prior to the work injury, he may be paid temporary partial disability benefits. Temporary partial disability is calculated by subtracting the average weekly wage from the amount paid by the employer for the light duty work. That number is then multiplied by 2/3 and that amount equals the benefits are payable. I.C. §22-3-3-9.

Earning Power Assessment

There is no earning power assessment in Indiana law

Employer Job Offer

In Indiana, an employer has no duty to hold a job open for an injured worker to resume once his treatment is resolved. Regardless of whether the injured worker has work restrictions or does not, when the worker reaches maximum medical improvement, the Indiana Workers’ Compensation Act does not require the employer to create a job to return the injured worker to employment. However, the employer may have obligations to the employee under the Americans with Disabilities Act.

Vocational Expert

If an injured worker claims that he is permanently and totally disabled as a result of the work injury, a vocational expert may be retained by either the employee or employer to prove or disprove that the worker is permanently disabled.

Amputation or Loss of Use

The impairment rating for an amputation is calculated by doubling the amount of money assigned to the percentage of loss of the body part pursuant to I.C. §22-3-3-10.

General loss of use is described in more detail above in the section regarding impairment ratings.

Disfigurement/Scarring

The Indiana Workers’ Compensation Act provides for compensation of permanent impairment for disfigurement or scarring, which may impair the employee’s future ability to obtain employment up to 40 degrees of impairment. However, impairment benefits for disfigurement are not payable if the employee is otherwise entitled to impairment or permanent total disability benefits. I.C. §22-3-3-10(i)(15).

Loss of Sight

The Indiana Workers’ Compensation Act provides for compensation of permanent impairment for loss of sight if a physician assesses the injured worker for such an impairment. The physician often uses the AMA Guidelines to Permanent Impairment to determine the impairment; however, the Indiana Workers’ Compensation Act does not specify an edition that the physician must use to assess the impairment.

Loss of Hearing

The Indiana Workers’ Compensation Act provides for compensation of permanent impairment for loss of hearing if a physician assesses the injured worker for such an impairment. The physician often uses the AMA Guidelines to Permanent Impairment to determine the impairment; however, the Indiana Workers’ Compensation Act does not specify an edition that the physician must use to assess the impairment

Penalties

The Board may make a determination that the worker’s compensation carrier has acted with a lack of diligence, in bad faith or has committed an independent tort in adjusting or settling the claim. I.C. §22-3-4-12.1. If lack of diligence, bad faith or an independent tort is proven, the claimant may be awarded at least five hundred ($500) but not more than twenty thousand ($20,000), depending on the degree of culpability and actual damages sustained. The individual Hearing Member may make this award in his or her discretion. The Hearing Member may add attorney fee’s payable with respect to an award for lack of diligence, in bad faith or has committed an independent tort in adjusting or settling the claim.

Interest

There is no right to recover pre-judgment interest for unpaid compensation benefits.

Costs

The Act does not provide for either party to recover their litigation expenses if they prevail on their claim or defense.

Counsel Fees

The Indiana Workers’ Compensation Act provides the schedule for attorney fees in I.C. §22-3-1-5(d) as follows
(1) A minimum of two hundred dollars ($200);
(2) Twenty percent (20%) of the first fifty thousand dollars ($50,000) of recovery;
3) Fifteen percent (15%) of the recovery in excess of fifty thousand dollars ($50,000);
(4) Ten percent (10%) of the value of:
(A) Unpaid Medical Expenses:
(B) Out-of-Pocket Medical Expenses: or
(C) Future Medical Expenses

Death Benefits

A worker who dies from an injury by accident arising out of and in the course of the employment is entitled to death benefits. Burial expenses not exceeding seven thousand five hundred dollars ($7,500) are owed. I.C. §22-3-3-21.

Additional benefits including 500 weeks of benefits payable at the TTD rate may be owed to “presumptive dependants.” I.C. §22-3-3-19. The surviving spouse of the deceased worker is a presumptive dependant and entitled to the TTD unless the spouse dies or remarries. In addition, presumptive dependants also include:
(a) an unmarried children under the age of twenty-one (21) years old who either lives with the deceased parent or for whom the state requires the deceased parent to provide support – the right to benefits terminates for these children after the child turns twenty-one (21);
(b) unmarried child over twenty-one (21) who is physically or mentally incapacitated from earning the child’s own support and the deceased parent supports the child;
(c) child over twenty-one (21) who at the time of parent’s death is keeping house for and living with the parent and is otherwise not gainfully employed – the right to benefits terminates if the child becomes gainfully employed or marries. If there are no presumptive dependents, any person related to the deceased who can prove that he or she was actually dependent on the deceased may receive the death benefits. I.C. §22-3-3-20.

If dependents in death claim refuse to allow an autopsy to be performed, the employer may suspend/terminate benefits paid to dependents by filing Suspension of Compensation and Medical Benefits Form 54217.

Medical Benefits

The Indiana Workers’ Compensation Act requires employers to provide reasonable and necessary medical care for compensable injuries. There is no waiting period for the injured worker to receive medical benefits. The duty to provide care continues until the employee reaches maximum medical improvement. Thereafter, the employer is required to provide only that medical care which is needed to limit or reduce the employee’s impairment. I.C. §22-3-3-4.

Pursuant to Indiana Code §22-3-3-5 provides employees do not have liability for medical services provided under the Indiana Workers’ Compensation Act. The Worker’s Compensation Board has the right to order payment. Medical bills must be submitted for service within one hundred and twenty (120) days of the date of service. 631IAC 1-1-32. The bills must be paid ninety (90) days thereafter.

Claims by health care providers must be submitted by filing an application for adjustment of the claim within two (2) years of communication from the employer after the provider submits its bill. 631 IAC 1-1-32 requires the provider and employer to make a good faith attempt to negotiate an agreed payment. Within thirty (30) days of the filing of the application, the payer must submit to the Board a written response setting forth the reason that reimbursement is not required along with any evidence. The provider then has thirty (30) days to file rebuttal evidence.

On June 30, 2014, amendments to Indiana Code §22-3-3-6 will take effect which provides that the liability of an employer for medical services rendered by a “medical service facility” is equal to a “reasonable amount,” which is defined as (1) any amount negotiated by the parties or (2) two hundred percent (200%) of the amount that would be paid to the provider under Medicare’s reimbursement rate. This applies only to “medical service facilities” which are distinguished from “medical service providers.” Indiana Code IC §22-3-6-1 defines “medical service facility” generally as a hospital or medical center, but excludes professional corporations comprised of health care professionals. “Medical service provider” refers to any person or an entity that provides medical services.

Travel expenses are paid if the employee has to travel outside the county of employment. Expenses include mileage at the Internal Revenue Code Standard Rate for Mileage.

Refusal of Medical Treatment

An injured worker’s refusal to accept medical treatment may affect their right to benefits. Generally, the injured worker’s first refusal to accept medical services, should trigger a letter to be sent to the worker via certified mail advising of new appointment date (minimum of seven days out) and that further refusal to accept medical services will result in termination/suspension of benefits. A second refusal to accept treatment may trigger issuing the Suspension of Compensation and Medical Benefits Form 54217 to the worker via certified mail notifying the worker that the employer intends to suspend/terminate compensation and medical benefits for refusal to accept medical services and must explain action required to have benefits reinstated.

THIRD PARTY CLAIMS/LIENS/SUBROGATION

Pursuant to Indiana Code § 22-3-2-13, when a third party is liable to the employee for an injury which is compensable under the Act, the employee* may sue the third party for damages. The term “third party” excludes both the employer and any other employee of the employer, even if the outcome is unfair. Smith v. Gary Public Transp. Corp., 893 N.E.2d 1137, 1140 (Ind.Ct.App. 2008). The employee must notify the employer * * of the lawsuit within thirty (30) days. However, any settlement or judgment entered into in such third party lawsuit, without the employer’s consent, terminates the obligation of the employer to pay any further compensation to the employee, except as described below. See Smith v. Champion Trucking Co., Inc., 925 N.E.2d 362, 365 (Ind. 2010). This does not apply to the settlement by an employee with the employee’s automobile insurer for uninsured motorist coverage. Pinkerton's Inc. v. Ferguson, 824 N.E.2d 789, 793-94 (Ind.Ct.App. 2005).

Indiana Code § 22-3-2-13 also creates a lien in favor of employer against any judgment or settlement of the third party lawsuit in the amount of payments made by the employer. The purpose of the statute is to make the employer or its carrier whole and prevent double recovery by the worker. Walkup v. Wabash Nat. Corp., 702 N.E.2d 713, 715 (Ind. 1998). The amount of the lien is subject to a reduction in the amount of the pro-rata share of the reasonable costs and expenses of the third party claim. This includes, but is not limited to, the costs of depositions, witness fees, and attorney fees of twenty-five percent (25%), in the event no suit is filed, or one-third (33 1/3%), if suit was filed. If an employer waives its right to reimbursement, then it does not have to pay the pro-rata share of costs and expenses

According to Indiana Code §22-3-2-13, in the event of a judgment against the third party for less than the amount for which the employer is liable, then the employee has the option to either
(1) collect the judgment and repay the employer or
(2) assign all rights to the judgment to the employer.
In such a case, the employee may then receive all benefits to which the employee would have been entitled if there was no third-party lawsuit.

This only applies, however, to judgments obtained other than by agreement of the employee. See Barrett v. City of Brazil, 919 N.E.2d 1176, 1179-80 (Ind.Ct.App. 2010).

Indiana Code §22-3-2-13 also provides, if the third party lawsuit is dismissed, the employer has the right to commence an action against the third party within one (1) year of the dismissal, regardless of any statute of limitations. If the employee fails to bring a third party lawsuit, the employer may bring an action within three (3) years of when the action accrued to the employee, regardless of any statute of limitations.

No release, settlement, or satisfaction of judgment is valid without the written consent of both the employer and employee, with one exception. The employer’s consent is not required where the employer has already been indemnified or is otherwise protected by a court order, for example, an order setting the monies aside in an escrow account or an order directing reimbursement. See Kornelik v. Mittal Steel USA, Inc., 952 N.E.2d 320, 327 (Ind.Ct.App. 2011).

ATTORNEYS

The parties to a proceeding before the board may appear either in person or by an attorney. Before any person shall be permitted to represent any party litigant before the board, he or she must be a licensed to practice law in Indiana and shall make an oath in writing, showing those qualifications as prescribed by law. 631 IAC 1-1-23.

CLAIMS PROFESSIONALS

In Indiana, Claims Professionals are not required to be licensed in order to manage and adjust worker’s compensation claims. Also, participation in continuing education is not required.

LITIGATION AND APPEAL

Workers’ Compensation Judge Proceedings

Worker’s Compensation Board

The Indiana Workers’ Compensation Board is part of the Indiana Department of Labor and Industry. The industrial board is an “administrative agency” not a “court” and the only function of judicial review of its proceedings is to ascertain if,  in broad sense, the requirements of due process have been met. Russell v. Johnson, 46 N.E.2d 219 (Ind. 1943).

Appointment of Workers’ Compensation Judges

The Workers’ Compensation Board consists of seven (7) members or Judges and are appointed by the Governor, not more than four (4) of whom shall belong to the same political party, appointed by the governor, one (1) of whom the governor shall designate as chairman. No member of the board shall hold any other position of trust or profit or engage in any occupation or business interfering with or inconsistent with the discharge of the member's duties. The Judges are required to hold hearings and issue decisions relating to petitions. The Board is led by a Designated Chairman appointed by the Governor of Indiana.

Qualifications of Worker’s Compensation Judge

The minimum requirements for appointment to the position of a Workers’ Compensation Judge include that an applicant must be an attorney in good standing in the state of Indiana. Each member of said board shall hold office for four (4) years and until the member's successor is appointed and qualified. Any member of said board may be removed by the governor at any time for incompetency, neglect of duty, misconduct in office, or other good cause to be stated in writing in the order of removal.

Procedure

Proceedings before a Worker’s Compensation judge are covered by Chapter 22 of the Indiana Code, Article 3 Worker’s Compensation, found at IC 22-3-1 et seq. Article 3 prescribes hearing procedures, time frames within which cases are to be litigated, and other matters pertaining to the procedure before Worker’s Compensation Judges

The Indiana Workers’ Compensation Act does not mandate alternative dispute resolution. There is no “mandatory mediation” requirement

All matters to be adjudicated by a Worker’s Compensation Judge in Indiana are initiated by an Application. All petitions and notices are required to be on forms prescribed by the Workers’ Compensation Board.

The injured worker is known as a “claimant” in Indiana workers’ compensation. In the event of the death of the injured worker, the “claimant” will be the dependent or dependents claiming entitlement to compensation under IC §22-3-3-18 and IC §22-3-3-19.

The employer is the defendant. If insured, all proceedings are against both the employer and the employer’s insurance.

Healthcare providers have standing to file Medical Provider Fee claim applications before the Board pursuant to 631 IAC 1-1-31.

The Indiana Workers’ Compensation Act provides for the use of the Indiana Rules of Trial Procedure and Evidence for proceedings before the Board. 631 IAC 1-1-3. However, the Act provides that Worker’s Compensation Judges are not bound by any technical rules of practice in conducting hearings and have broad authority to subpoena witnesses and records, and to investigate on their own motion the facts set forth in any petition, or the facts pertinent to any injury under the Act. See IC §22-3-1-3.

For the most part, fact witness, such as the claimant, any corroborating witnesses, the defendant employer, and rebuttal witnesses testify live at hearings before workers’ compensation judges. Expert witnesses, such as physicians, generally testify by deposition and the transcripts of those depositions are admitted into evidence at subsequent hearings.

The board by any or all of its members shall hear the parties at issue, their representatives and witnesses, and shall determine the dispute in a summary manner. The award shall be filed with the record of proceedings, and a copy thereof shall immediately be sent to each of the employee, employer, and attorney of record in the dispute. IC §22-3-4-6.

Investigatory Powers / Decisions

It has long been the law in Indiana that a Worker’s Compensation Judge is the sole finder of fact, and is free to accept or reject the testimony of any witness in whole or in part. A party is not permitted to challenge or second guess the Worker’s Compensation Judge’s reasons for credibility determinations. Unless arbitrary or capricious, a Worker’s Compensation Judge’s credibility determinations will be upheld on appeal. Wholesalers, Inc., D/B/A Shangri–La V. Hobson, 874 N.E.2d 622 (Ind. App. 2007). Indiana appellate courts give great deference to the decision-making process and fact-finding of Worker’s Compensation Judges

Workers’ Compensation Appeal Board

General Rule

An award by a Worker’s Compensation Judge is conclusive and binding and can be appealed to the Full Board for review within thirty (30) days from the date of such award. Thus, the Full Board is primarily an appellate body reviewing Worker’s Compensation Judge’s decisions on legal issues.

Scope of Review of full board

Review by the Full board is a proceeding de novo, but not a new trial. Eastham v. Whirlpool Corp., 524 N.E.2d 23 (Ind. App. 1988). The Full board has broad discretionary power to order a remand in the interest of justice. The Full boardmay remand to back to the Worker’s Compensation Judge to take additional evidence if the Worker’s Compensation Judge’s findings are not supported by substantial evidence or where the Worker’s Compensation Judge failed to make findings on a critical issue for proper application of the law. It is the duty of the Full board, as the trier of fact, to make findings that reveal its analysis of the evidence and that are specific enough to permit intelligent review of its decision. Wholesalers, Inc., D/B/A Shangri–La V. Hobson, 874 N.E.2d 622 (Ind. App. 2007).

Indiana Court of Appeals and Supreme Court

Jurisdiction

The Court of Appeals is the tribunal which hears administrative and statutory appeals. Any party may appeal a final order of the Full Board pursuant to 631 IAC 1-1-22. The Court of Appeals reviews Full Board decisions, not Worker’s Compensation Judge’s decisions. The appellate court employs a deferential standard of review to the interpretation of a statute by an administrative agency charged with its enforcement in light of its expertise in the given area; the Full Board will only be reversed if it incorrectly interpreted the Indiana Workers’ Compensation Act. Stewart v. Richmond Community Schools, App.2012, 964 N.E.2d 927, rehearing denied.

An Appeals Court is not bound by the Worker's Compensation Board's interpretations of law. However, it should reverse on appeal from a negative judgment only if the Full Board incorrectly interpreted the Indiana Workers’ Compensation Act. Reeves v. Citizens Financial Services, App.2012, 960 N.E.2d 860, transfer denied 968 N.E.2d 232; Perkins v. Jayco, Inc., App.2011, 956 N.E.2d 1151. An appellant must show that a decision was contrary to law by showing that evidence was without conflict, that it would lead to but one conclusion, and that the industrial board reached opposite conclusion. Martinez v. Taylor Forge & Pipe Works, 368 N.E.2d 1176 (Ind. App. 1977). On appeal from negative award of the Full Board, it is not necessary for the employer to show that the negative award is supported by a preponderance of the evidence; it is the claimants' burden to prove their right to compensation. Lincoln v. Whirlpool Corp., App.1972, 279 N.E.2d 596, 151 Ind.App. 190.

In evaluating the Full Board's decision, the Court of Appeals employs a two-tiered standard of review. First, the record is reviewed to determine if there is any competent evidence of probative value to support the Full Board's findings. The Court then examines the findings to see if they are sufficient to support the decision. See Wholesalers, Inc., 874 N.E.2d at 627 citing Shultz Timber v. Morrison, 751 N.E.2d 834, 836 (Ind.Ct.App.2001). The Court of Appeals will not reweigh the evidence or assess witness credibility, and will consider only the evidence most favorable to the award, including any and all reasonable inferences flowing therefrom.

Appeal to Supreme Court

The Indiana Supreme Court hears appeals as a matter of discretion. Any party aggrieved by an award of the Court of Appeals may file a Petition for Transfer.

SETTLEMENT

Mediation

Mediation is voluntary and never mandatory. The following is a description of the mediation procedure.
1)       All parties must agree to mediation.
2)       A written request for mediation is submitted to the Ombudsman Division
3)       The case is assigned to a mediator certified by the Indiana Continuing Legal Education Forum. The mediator’s fees shall be established by a schedule of fees and charges determined by a rule of the board.
4)       The mediator contacts the parties with the location and prospective dates
5)       Once the parties have agreed to a date the ombudsman will send out a confirmation letter asking that the parties submit confidential pre-mediation statements at least one week before the date of the mediation.
6)       The mediator will review the disputed case file and the pre-mediation statements to become familiar with the case and start to identify the issues involved and confirm appropriateness of mediation. If not for mediation inform parties and set for final hearing.
7)       Mediation occurs
8)       Depending on the outcome, the mediator may either follow-up with the parties on the written settlement, or if mediation fails facilitate the setting of the case for final hearing before a member of the Board.
I.C. §22-3-4-4.5.

Informal Dispute Resolution: The Ombudsman Division

Employees, employers, and insurance carriers with general questions or problems may contact the Ombudsman division for assistance by calling (800) 824-2667 or (317) 232-5922. Assistance is also available on a walk-in basis.

Voluntary Full and Final Settlement Agreements (I.C. §22-3-2-15)

The parties may enter into a voluntary “full and final” settlement/compromise agreement to resolve the claim. The agreement shall be after seven (7) days from the date of the employee’s injury or death. The agreement shall be memorialized in writing, signed by all parties, in accordance with the rights set forth under I.C. §22-3-2 through 22-3-6, and submitted to a member of the board for approval. The agreement will not be valid and enforceable unless it is approved by a member of the board.

If the agreement contains a compromise on the issue of the amount of Permanent Partial Impairment (PPI) the employee has suffered, the Board requires that the parties attach copies of medical opinions addressing the issue of PPI.

The Board has complete discretion in approving settlement agreements.

The party submitting settlement agreements for review by the Board should always submit three copies of the document, along with stamped envelopes addressed to both the employer and/or carrier’s legal counsel and the employee or employee’s attorney.

The settlement agreement must include the term “full and final” within its language to bar an employee from re-opening the particular claim in the future

A full and final settlement agreement made during an employee’s life that was approved by a member of the Board shall extinguish and bar all claims for compensation for the employee’s death, if the settlement compromised an issue other than extent of disability or the rate of compensation.

INSURANCE

General Rule

All employers, with the exception of certain exempt employers, must carry insurance for the employer’s liability to pay medical benefits and compensation to injured workers by purchasing a private insurance policy. I.C. §22-3-5-1. An employer can elect to be self insured but must apply to and be authorized by the Board to obtain self-insured status. I.C. §22-3-5-3.

Particular Requirements

The employer must file proof with the Board that it has insured its liability under the Indiana Workers’ Compensation Act. I.C. §22-3-5-2. It is the responsibility of the employer to determine whether a given employment relationship requires insurance and must be covered in Indiana, not the Worker’s Compensation Board.

General Rule Where Employer is Uninsured

An employer who fails to carry worker’s compensation insurance commits a Class A infraction. Upon a written referral from the Worker’s Compensation Board, employers failing to carry insurance can be prosecuted in the county in which the employee was injured. I.C. §22-3-4-13.

Damages Where Employer is Uninsured

An employer who fails to carry worker’s compensation insurance coverage sufficient to meet is obligations under the Indiana Workers’ Compensation Act can be ordered to pay reasonable medical expenses, double compensation, and reasonable attorney’s fees to an employee injured during the period in which the employer’s liability is uninsured. I.C. §22-3-4-13.

The Worker’s Compensation Board may also pursue a court action against an employer who fails to carry insurance. The court has the authority to order an employer to cease doing business in Indiana until the employer files proof of insurance coverage with the Board. The court can also order the employer to provide proof of its financial ability to pay any claims and to deposit a security, indemnity or bond with the Board to secure payment for any injuries occurring during the lapse of coverage. I.C. §22-3-4-13.

Uninsured Employers Guaranty Fund

Indiana does not have a guaranty fund to pay claims to injured worker’s when the employer is uninsured. However, an injured employee can pursue other avenues to recover benefits. If the employee worked for a subcontractor who was uninsured, the employee can then “move up the line” and seek payment of benefits from the general contractor if the general contractor failed to exact a certificate of coverage from the Worker’s Compensation Board proving the subcontractor carried insurance for the time it performed work for the general contractor. I.C. §22-3-2-14.