Elements of Compensability
Employers must pay the compensation and benefits provided under the Act when the following four elements of a worker’s compensation claim are met (see Ind. Code § 22-3-2-2). If the employer/carrier denies a worker’s compensation claim and the dispute is heard by the Board, the employee has the burden of proving each of the elements.
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personal injury or death;
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by accident;
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arising out of the employment; and
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in the course of employment.
The Exclusive Remedy Provision
The worker’s compensation system was designed to replace the civil lawsuit as the means of recovering damages for work-related injuries. In Indiana, worker’s compensation is the employee’s “exclusive remedy” against the employer where there is personal injury or death by accident arising out of and in the course of employment. In other words, if there is a personal injury by accident arising out of and in the course of employment, the employee must pursue any claim against the employer through the worker’s compensation system. Ind. Code § 22-3-2-6.
The following types of injuries are included as examples to demonstrate the wide range of circumstances under which injuries may be covered by worker’s compensation.
Intentional Injuries by the Employer are not considered to occur “by accident” in Indiana and therefore would not be covered. The worker might have cause for a civil lawsuit in such situation.
Repetitive Trauma injuries such as Carpal Tunnel Syndrome may be caused by compensable in Indiana, if they can be shown to arise out and in the course of employment.
Parking Lot Injuries in parking lots owned 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.
Ingress and Egress the time required to enter and exit the employment premises is generally covered. Injuries occurring in employee parking lots are generally within the course of employment.
Heart Attack cases can be proven under worker’s compensation if the worker can show that there was some kind of unusual stress or exertion that triggered the heart attack.
Heart Stroke, Health Prostration, and Sunstroke injuries may be compensable if the employment puts the worker at a greater risk for such injuries than the general public.
Psychological Injuries/Mental Stress Injuries are potentially compensable in Indiana.
Exposure to Blood-Borne Pathogens (HIV, Hepatitis) There is some uncertainly as to the compensability of these exposure cases because no Indiana worker’s compensation case has yet addressed the issue of exposure to HIV, although hepatitis exposure arising out of the employment has been held to be compensable. However, other state worker’s compensation systems that have addressed the issue uniformly provide diagnostic testing under worker’s compensation if an employee is stuck with a needle, splashed with blood or body fluids, or otherwise exposed to risk of a blood-borne infection, as long as the exposure arises out of and in the course of employment.
Recreational Activities, Employer-Sponsored PartiesInjuries occurring at recreational activities connected with the employment 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.
Traveling Employees such as salespeople are covered while traveling.
Aggravation of Existing Condition The aggravation of an existing condition by an injury arising out of and in the course of employment is generally compensable.
Who Chooses the Treating Physician?
With few exceptions, the employer/insurance carrier has the right to direct medical care in Indiana. In most cases, the employer provides a physician, free of charge, for the treatment of an employee’s injuries.
How Long Will Medical Treatment be Provided?
The answer to this question varies from case to case, depending on the needs of the employee. Indiana law does not provide a length of time that the employer is liable for medical treatment. However, if the Board finds that an employee’s application is barred by the statute of limitations, it may be unable to order medical benefits. If medical benefits are needed, the employee should file an Application for Adjustment of Claim within two (2) years from the date of injury.
Payment for Lost Wages
The Worker’s Compensation Act covers three types of disability: Temporary Total Disability (TTD), Temporary Partial Disability (TPD), and Permanent and Total Disability (PTD).
Temporary Total Disability (TTD) is paid for the time period an employee is completely unable to perform his or her regular work because of an injury. TTD is paid at the rate of two-third (2/3) of the employee’s pre-injury average weekly wage, subject to a maximum period of 500 weeks. Ind. Code § 22-3-3-8; Ind. Code. § 22-3-3-22.
Temporary Partial Disability (TPD) is paid when the employee is partially unable to work. For example, an employee’s injuries might limit the number of hours an employee is able to work.
Permanent Total Disability (PTD) awards are paid when it is established that the employee will never again be able to work in a reasonable employment.
PPI Examinations
An injured employee’s PPI is assessed by the treating physician. Some physicians use the American Medical Association’s Guides to the Evaluation of Permanent Impairment in evaluating the employee’s impairment rating. A PPI rating is stated by the doctor in terms of a percentage of loss or loss of use of the body part or the whole body, for example “The employee has suffered a loss of 10% to the hand” or “The employee’s impairment is 25% to the whole body.”
The impairment ratings assessed by the physician are converted into a dollar award through the use of the “degree system”. The entire body is worth 100 degrees, with lower degree values being assigned to individual body parts. For each degree of impairment, the employee receives a sum of money determined by a schedule contained in the Act.
Alcorn Goering & Sage Worker's Compensation Group
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Heidi Kendall-Sage, Attorney
Kara Lacy, Paralegal
Ann Schwartz, Attorney
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