Legal Principles for Effective Workers' Compensation Management
ROBERT FANNING
DUE DOYLE FANNING & ALDERFER LLP
rfanning@duedoyle.com
JURISDICTION
Coverage under the Indiana Workers' Compensation Act and the jurisdiction of the Indiana Workers' Compensation Board are premised upon an Indiana contract of employment, either express or implied, and at least partial performance of that contract within Indiana.
EMPLOYMENT
An employer is any individual, firm, association, LLC, or corporation "using the services of another for pay". An employee is any person in the service of another. The Act applies to every Indiana employer and employee, but there are statutory exemptions or requirements applicable to agricultural employees, household employees, public officers, sole proprietors, partners, members or managers of an LLC, real estate professionals, independent contractors in the construction trades, owner/operators of trucks and volunteers.
IWCI/ISIA Seminar, August 4, 2011
Claims Resolution
ROBERT FANNING
DUE DOYLE FANNING & ALDERFER, LLP
rfanning@duedoyle.com
The majority of workers' compensation claims in Indiana are resolved without an evidentiary hearing and determination by a hearing judge. If every claim were tried, we would need attorneys, more judges, more experts, more paper and the transaction cost for our system would be much higher than it is now. The Indiana workers' compensation system is premised upon each of us (claims professionals and attorneys) doing the right and reasonable thing when it comes to resolving claims. We have an obligation to encourage a prompt and appropriate resolution, and a failure in that regard may constitute a failure of diligence in adjusting or settling a claim and may lead to a penalty of up to $20,000 plus attorneys fees of up to $6,667 pursuant to Indiana Code 22-3-4-12.1.
Indiana Self-Insurers Association (ISIA) Fall Seminar October 8, 2010
Case Law Update
Robert Fanning
DUE DOYLE FANNING & ALDERFER, LLP
rfanning@duedoyle.com
Federal Court
Brown v. Cassens Transport
The plaintiffs, six employees of Cassens, alleged that Cassens, its TPA and a doctor engaged in an illegal scheme to deny them worker's compensation benefits. They relied upon the Federal Racketeer Influenced and Corrupt Organizations Act (RICO). Cassens moved to dismiss the RICO claim, which motion was denied. Cassens appealed to the US Court of Appeals (Six Circuit) which affirmed the denial of the Motion to Dismiss. Cassens appealed to the US Supreme Court, which refused to hear the appeal. Thus, the case was returned to the Federal District Court for further action and the court then ruled that the employee's claim was within the exclusive remedy provision of the Michigan Workers' Disability Compensation Act and also that the RICO statute was not applicable because the plaintiff failed to allege an "injury to business or property" as required by the Act.
ISIA Spring Meeting June 11, 2010
Case Law Update
Robert Fanning
DUE DOYLE FANNING & ALDERFER, LLP
rfanning@duedoyle.com
Indiana Supreme Court
Smith v. Champion Trucking - Smith was employed by Champion and was injured at work. Champion paid $4,342.42 in medical expenses. The injury was caused by a third party and Smith settled with the third party for $10,342. A few weeks later, Smith was assigned a PPI rating worth $26,500 in additional compensation and demanded that from Champion. Champion claimed that the third party settlement was a complete bar to an additional worker's compensation recovery. The Board agreed with Champion, the Court of Appeals reversed, holding that the termination provision of the Act did not apply to cases pending at the Board, and the Supreme Court reversed the Court of Appeals, holding that the third party settlement released the third party and the Workers' Compensation Act clearly provides that a settlement with a third party without the employer's consent bars the workers' compensation claim.
Washington Township v. Beltway - Washington Township underpaid Beltway's medical billing based on a review by a billing review service. Beltway filed an Application with the Board claiming that the payment was not consistent with Indiana law. The Board held that Washington Township had the burden of proving that the amount It paid was consistent with Indiana law; that is, at the 80th percentile of all charges for like service in the same community. The Court of Appeals agreed with the Board and the Supreme Court affirmed that decision.
Indiana Self-Insurers Association (ISIA) Spring Seminar June 11, 2010
Case Law Update
Robert Fanning
DUE DOYLE FANNING & ALDERFER, LLP
rfanning@duedoyle.com
Medical Obligations Pursuant to Indiana Workers' Compensation Act
The provision of medical care under the Workers' Compensation Act is governed by Indiana Code 22-3-3-4. That section is divided into seven sub parts which relate to the provision of medical services that (a) After an injury and prior to an adjudication of permanent impairment, (b) During the period of temporary total disability, (c) After there has been an adjudication of permanent partial impairment and the consequences of an employees refusal to accept medical services, (d) In an emergency, where the employer has failed to provide to medical services or because of any other good reason (e) Artificial Members, (f) Damage to artificial members and (g) Other agreements regarding choice of medical. As might be imagined, there has been a lot of litigation with regard to the meaning of these seven provisions.
Workers' Compensation News
Case Summary - October 9, 2008
EXCLUSIVE REMEDY
Hatke v. Fiddler, 868N.E.2d 60 (I.N. 2007)
The Workers' Compensation Act was the exclusive remedy for an employee who was injured in an auto accident involving a co-employee in a separate vehicle. Since both employees were in the course of their employment (although in two different vehicles going two different places) the non-negligent driver did not have a civil action against the negligent co-employee.
Eichstadt v. Frisch's Restaurants, Inc., 879N.E.2d 1207 (I.N. 2008)
The Workers' Compensation Act was the exclusive remedy for an employee who was injured when a manager hit her on her buttocks with a clipboard. While the manager's act may have been intentional and outside the scope of his employment, there was no showing that the manager was the alter ego of the employer or that his actions and her injury were the intended result of the employer's policies.
Procare Rehab Services of Community Hospital v. Vitatoe, 888N.E.2d 349(I.N. 2008)
The Workers' Compensation Act was the exclusive remedy for a hospital employee who claimed malpractice as to the employer's hospital's physical therapy department, where she was receiving treatment for a work related injury. Procare was not a separate legal entity from Community Hospital and its actions, even if they aggravated the injury, arose out of the employment and not as a the result of the employer acting in a dual capacity.
Workers' Compensation FAQ
Q. MAY AN EMPLOYER USE "UTILIZATION REVIEW" IN INDIANA?
A. Indiana is an employer choice of medical state. Indiana Code 22-3-3-4 (a) provides that after an injury and before the adjudication of an impairment, the employer is responsible for "...such surgical, hospital and nursing services and supplies as the attending physician...may deem necessary." Since the attending physician is chosen by the employer, any utilization review which suggests less treatment than that deemed necessary by the attending physician creates a problem.
The best approach is to discuss with the attending physician any difference between that level of care which he deems necessary and the level of care suggested by the utilization review. If the attending physician is willing to comport his treatment to the level of care suggested by the utilization review, then there is no conflict. But, if he is not so willing, then his opinion as to what is necessary will be controlling. This is so because the employer chose the attending physician and cannot later be heard to complain that it does not like the level of care which its physician is recommending.
Q. DOES AN EMPLOYER HAVE TO PAY FOR A HOTEL ROOM FOLLOWING OUT PATIENT SURGERY IF THE EMPLOYEE NOW LIVES OUT OF STATE?
A. Indiana Code 22-3-3-6 (b) provides that when an employee has moved out of state and medical treatment is tendered within the state, the employer is responsible for "...the travel expense and the cost of meals and lodging necessary during the travel...from the point in Indiana nearest to the employee's then residence to the place of examination." This means that the lodging in Indiana after the surgery would be the employer's responsibility if the employee cannot travel back home following the surgery.
Significant Indiana Worker's Compensation Cases 2005-2006
Statute of Limitations
- Colburn v. Kessler's Team Sports - July, 2006 (App.Ct.) An employee's application for authorization of surgery, filed more than 2 years after his work-related injury, was properly rejected as time-barred because the limitations period of I.C. 22-3-3-3 applied to claims for medical services and was not tolled by the failure of the employee and employer to disagree during the limitations period.
- Prentoski v. Five Star Painting, Inc. - November, 2005 (Sup.Ct.) Plaintiff failed to file application for increased PPI within one year of the last date TTD benefits were paid. (I.C. 22-3-3-27). Plaintiff argued that the one year statute of limitations ran from the date the employer actually paid the PPI award. The court disagreed, stating that "our court has repeatedly held that the one year statute of limitations begins to run from the date the claimant's PPI or TTD benefits ended." (i.e., focusing on the last date "for which" compensation was paid, rather than the last date "on which" compensation was paid).
Significant Indiana Workers Compensation Cases
Injury by Accident: Evans v. Yankeetown Dock Corp., 491 N.E. 2 d 969 (Ind. 1986)
Plaintiff Evans was at work prior to shift starting in the morning, drinking coffee with fellow employees. Due to an alcoholic paranoid delusional state, another employee sneaked up on him and shot him five times - killing him within minutes. The Plaintiff's Estate filed a wrongful death claim against the employer (not a workers' compensation claim). The employer obtained dismissal of the case due to the Exclusive Remedy Provision of the Workers' Compensation Act. Upon review by the Supreme Court, the dismissal was upheld.
Additional Recent Case Law
Prejudgment Interest
The Indiana Court of Appeals recently decided the case of Bowles v. Griffen Industries, at 855 NE 2d 315, in which it stated that prejudgment would not be awarded under Indiana workers' compensation law. It affirmed that post judgment interest still may be appropriate in certain circumstances, which would include the five and 10% rule on appellate cases. It is interesting to note that Mr. Bowles' case has generated a good bit of litigation in front of the Indiana Workers' Compensation Board. In an earlier case found at Bowles v. Second Injury Fund, 827 NE 2d 142, he was denied retroactive admission into the Second Injury Fund because of delays that were the fault of the Plaintiff and not the Worker's Compensation Board. An earlier Bowles case found at 798 NE 2d 908 also addressed the issue of apportionment in permanent and total disability claims.
