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.
Q. IF AN EMPLOYEE WAS PAID A PPI AND THEN HAS ANOTHER INJURY, WILL HE BE ABLE TO REPORT IT? IF HE APPLIES FOR A DIFFERENT JOB, DOES HE HAVE TO TELL THEM ABOUT HIS INJURY AND RESTRICTIONS?
A. 1) If an employee has another accident, he can and should report it.
2) If an employee applies for a different job, that employer is prohibited from asking medical questions or questions about prior workers' compensation claims until AFTER an offer of employment has been made. Those questions may be asked POST OFFER in order to provide a reasonable accommodation for any permanent disability. The decision as to whether he discloses the restrictions is left to him, but his failure to do so may be a violation of the employment agreement. If the restrictions would prohibit him from performing the job and cannot be accommodated, then he may be disqualified from the employment.
Q. AN EMPLOYEE'S FIRST DAY OF DISABILITY WAS 02/22/06 AND SHE RETURNED TO MODIFIED DUTY 03/15/06 4 HOURS PER DAY. IS SHE ENTITLED TO BE PAID FOR THE 7 DAY WAITING PERIOD?
A. The Indiana statute with regard to the 7 day waiting period and the 21 day recapture period applies to both TTD and TPD. Although her TTD was not longer than 21 days, her TPD extends beyond 21 days, and so she is now entitled to be paid TTD for the first 7 days.
Q. IF AN EMPLOYEE IS RECEIVING A SEVERENCE PACKAGE, CAN SHE MAKE A CLAIM FOR CARPAL TUNNEL SYNDROME?
A. The fact that the employee has been released from her employment and is receiving a severance package does not affect her right to make a workers' compensation claim, provided that the same is made within the appropriate statute of limitation. For accidental injuries, that would be two years from the date of the accident. For repetitive trauma injuries, that would be two years from the date the injury became discernable. But, late reporting is suspicious, especially in light of prior timely reports of injury.
Q. WE HAVE PROVIDED AN EVERY DAY PROSTHETIC AND A WORK PROSTHETIC. WILL BOTH PROSTHETICS BE COVERED BY THE SECOND INJURY FUND?
A. The second injury fund is responsible for the repair and replacement of prosthetic devices in compensable cases, so long as the same is not required due to employee misuse or abuse of the device. If the treating physician prescribed two prosthetic devices, then both will likely be the obligation of the second injury fund. The 1043 Agreement as to the amputation needs to be specific as to the compensability of the case and to indicate that both prosthetic devices have been provided in satisfaction of the employer's statutory obligation in that regard.
Q. IS IT POSSIBLE TO CALCULATE A PERMANENT PARTIAL IMPAIRMENT RATING FOR CONTACT DERMATITIS?
A. The requirement for a permanent partial impairment is that there is a permanent loss of physical function. If the skin heals, then there would be no permanent loss of function of the skin. However, if the skin does not heal, or does not function properly, as can be the case with burns, then there could be a PPI. The treating physician should be asked: "Has the employee reached his maximum medical improvement and if so, has he suffered any permanent loss of function? If the answers are "yes" and "no", then the employer has met its obligation under the Act to determine whether or not there has been a permanent loss of physical function. If the answers are "yes" and "yes", then the permanent partial impairment rating should be requested of the physician.
Q. AN EMPLOYEE WAS SITTING AT THE BREAK TABLE WITH HER LEGS CROSSED, FELL GETTING UP, AND WAS INJURED. IS THAT COMPENSABLE?
A. Compensability requires that the employee prove an injury by accident, arising out of and in the course of the employment. Here, the injury was an accident (because it was unexpected) and it was in the course of the employment (because it was at a place and time where the employee was expected to be). The question is whether the injury arose out of (was caused by) the employment and that requires an analysis of the employment related risks and the personally related risks that led to the accident. But, the employee's contributory negligence is not the same as a personal risk of injury and cannot be the basis for a denial of the claim.
Q. CAN THERE BE PERMANENT RESTRICTIONS AFTER AN INJURY BUT NO PERMANENT IMPAIRMENT?
A. The question of permanent restriction is not one which the Workers' Compensation Act requires be answered. It is theoretically possible that the permanent restrictions have been assigned in order to prevent future re-injury, but that there is no current loss of physical function. However, as a practical matter, if there are permanent restrictions, that suggests that there has been a loss of physical function and thus some degree of permanent partial impairment.
Q. THE EMPLOYEE SAYS HER SHOULDER HURTS BUT SHE CANNOT IDENTIFY A SPECIFIC ACCIDENT. HER MRI SHOWS A ROTATOR CUFF TEAR AND A BONE SPUR. IS THIS COMPENSABLE?
A. Let's go back to basics. In order to have a compensable claim, the employee must prove an accidental injury that arose out of and in the course of the employment. Accidental injury means unexpected injury. If the employee has had long standing problems with the shoulder, then the symptoms in the shoulder may not be unexpected. Arising out of the employment means that the injury was caused by the employment. There must be a work related risk that the injury will occur and medical evidence that correlates that risk with the condition. If personal risk factors outweigh the employment risk factors, then the injury did not arise out of the employment. An injury is in the course of the employment if it occurred during the employment hours at a place where the employee was required to be.
It is not enough to just make a claim. Pursuant to a recent statutory change, it isclear that the employee carries the burden of proving all of the elements of a claim for compensation.
Q. WHAT IS YOUR OPINION ON INJURIES WHILE USING EXERCISE EQUIPMENT AT THE WORKSITE? CAN WE HAVE THE EMPLOYEE SIGN A DISCLAIMER?
A. Recreational activity which benefits the employer by creating goodwill with employees is compensable, even if the employee's participation is voluntary. Such cases are usually compensable because the expense of providing a place for the equipment and the cost of the equipment would not normally be spent by an employer if it did not expect some benefit from doing so. That benefit might include a healthier or happier workforce. The signing of a waiver would not change the compensability of the injury because the Indiana Workers' Compensation Act contains a provision that renders any agreement limiting the application of the Act void.
Q. CAN WE SETTLE A CASE ON A COMPROMISE BASIS IF THE ORIGINAL INJURY WAS COMPENSABLE?
A. While it would be nice to avoid the two year right to reopen in every case, that right is given to the employee pursuant to the statute, and at a minimum, there must be some disagreement and appropriate compensation for the waiver of such right must be given. The problem is in determining what amount of payment is appropriate where no analysis as to the likelihood of a change of condition or the expense of future treatment has been undertaken. While it is possible to execute a Section 15 Agreement by setting out a potential dispute and a small payment, that Agreement might be set aside in the future (especially if the employee is unrepresented by counsel) where it appears that the employee has been misled concerning the right to reopen or its value. Where the possibility of future medical treatment is great, the payment for giving up the right to reopen would need to be substantial. But if the time within which the right to reopen might be exercised is short, then the consideration for the waiver of such right could be reduced.
Q. IF INDIANA CODE 22-3-3-4(a) OBLIGATES AN EMPLOYER TO REIMBURSE AN EMPLOYEE FOR LOST WAGES. DOES THAT OBLIGATION APPLY TO OUT OF COUNTY TREATMENT ONLY?
A. The requirement that lost wages be reimbursed at the average daily wage applies without regard to the county of employment/county of treatment qualification.
Q. AN EMPLOYEE HAD SURGERY TO REPAIR A TORN TENDON IN HIS ANKLE AND THEN DEVELOPED A DEEP VEIN THROMBOSIS IN THE LOWER PART OF THE LEG. A PPI RATING WAS ASSIGNED FOR EACH INJURY. DO I SIMPLY ADD THESE TWO RATINGS TOGETHER?
A. Assuming that both impairments are to the leg below the knee, the best way to deal with two distinct impairments to the leg is to use the combined values table found in the AMA Guides to Permanent Impairment. If the impairments are small, the combined values table is likely to give the same number as would simple addition. But, if one or both of the impairments are large, the combined values table would actually be somewhat less then the sum of the two impairments. Another alternative is to ask the doctor to assign one rating for both injuries, and that would be particularly true where multiple body parts are involved.
Q. WHAT DO YOU THINK ABOUT A CAFETERIA AIDE WHO WAS "RUSHING" BECAUSE SHE WAS BEHIND SCHEDULE WHILE SETTING UP FOR LUNCH AND THEN FELT HER KNEE "POP" WHEN SHE TURNED THE WRONG WAY?
A. Rushing to do the job does create greater employment related risk of injury than walking to do the job. If there is no evidence of a personally related risk, then the work related risk, even though slight, is sufficient to support compensability. Even though the employee denies prior problems, if it is hard to understand how the injury occurred, a review of the family doctor medical records is recommended to make sure that the employee is telling the truth. As the employment related risk rises, the likelihood that a personally related risk would outweigh the employment risk becomes less. For example, if the employee were rushing and stepped in oil on the floor causing a fall and a twisting of the knee, it is hard to imagine a pre-existing personal problem which would be so significant as to outweigh the risks associated with that employment activity.
Q. I HAVE A CASE WHERE THE SURGEON RECOMMENDED THAT THE PATIENT STOP CHEWING TOBACCO. HE IS RECOMMENDING SURGERY BUT HAS NOT SAID HE WON'T DO THE SURGERY IF HE DOESN'T STOP. THE DOCTOR TOLD THE PATIENT HE COULD TAKE CHANTIX, A DRUG TO HELP PEOPLE STOP SMOKING AND CHEWING. WOULD CHANTIX BE COVERED BY WORK COMP.?
A. There may be no legal obligation under the Indiana Workers' Compensation Act to provide this medication, but, the practical fact of the matter is that if the plaintiff does not stop using tobacco and has an adverse recovery, the employer will probably bear the burden of that for the reason we take the employee as we find him. There are cases where the Board has ordered that an obese employee be provided weight control treatment in order to allow a surgery to be performed. That is not really the case here, since the doctor has said he will do the surgery anyway. But, the best approach to these situations is to enter into an agreement which contains a carrot and a stick. In other words, enter into an agreement with the employee and the doctor that the employer will provide the drug and that the doctor will do periodic testing to assure that the nicotine use has stopped. This obviously gives the treatment the best chance of success and makes the nicotine cessation a part of the treatment. But the stick is that if the employee does not stop, that will, by the agreement, be considered medical non-compliance and will result in a termination of rights under the Act.
Q. A TRUCK DRIVER HAD DROPPED OFF A LOAD AND WAS IN HIS CAB FILLING OUT HIS LOG BOOK. HE OPENED HIS SEMI DOOR, LEANED OVER TO SPIT AND LOST HIS BALANCE, FELL OUT OF THE TRUCK AND BROKE HIS NECK. IS THIS COMPENSABLE?
A. I think that it is compensable. Leaning and spitting creates some degree of personal risk. The fall from the cab constituted a work related risk due to the height above the ground. It is the height which is the cause for the injury, not the spitting. And, the activity might be deemed a matter of employee comfort and convenience and therefore arise out of and in the course of the employment.
Q. EMPLOYEE HAD VOLUNTEERED FOR THE CORPORATE CHALLENGE. AFTER THE WALK, THE EMPLOYEE NOTICED PAIN AND A KNOT IN HER LEFT KNEE. EMPLOYEE DENIES ANY SLIP, TRIP, TWIST, OR FALL. THE QUESTION IS IF THE EMPLOYEE VOLUNTEERED AND WAS OFF THE CLOCK, COULD HER CONDITION BE COMPENSABLE?
A. These are not easy questions to answer. They depend on how "voluntary" the activity really was. Here the name is Corporate Challenge, not personal challenge! That suggests that there was a benefit to the employer. If memos, e-mails, conversations, words of encouragement, etc. went into getting people to "volunteer" then it would likely be compensable.
Q. IF AN EMPLOYEE SUFFERS A SYNCOPAL EPISODE WHILE DRIVING FOR WORK AND IS INJURED IN A MVA, IS THIS COMPENSABLE? (THE CAUSE FOR THE SYNCOPAL EPISODE IS UNKNOWN BUT RUMORED TO BE DUE TO LOW BLOOD SUGAR.)
A. If she passed out while standing at a work station and hit the floor, the answer would be no. There is case law which suggests that the risk of that injury is a personal risk. But, where the employee is driving, or up on a ladder, or in some other position of increased risk due to the employment, the injury sustained as a result of that increased risk is compensable, even though the cause for passing out was a personal risk. This is basic risk analysis - which of the risks is the more significant cause for the injury.
Q. IF WE RESOLVE A WORKERS' COMPENSATION CLAIM BY A WAY OF SECTION 15 SETTLEMENT, WILL THIS PRECLUDE US FROM RECOVERING FROM THE "3RD PARTY"?
A. Section 15 can be interpreted to mean that the Act does not apply, and if the Act does not apply, then Section 13 regarding liens probably does not apply either. Since the third party settlement will likely terminate liability, the need for a Section 15 may not be as great as would otherwise be the case. And, depending on the statute of limitations, the time to reopen may be so short as to not justify the risk.
Q. WE HAD AN ACCIDENT WHERE AN EQUIPMENT OPERATOR STRUCK A LARGE YELLOW METAL BEAM. WHILE TALKING WITH HIM THERE WAS A STRONG ODOR OF ALCOHOL. IT IS THE EMPLOYER'S POLICY TO REQUEST A BREATHALYZER TEST. THIS CAME BACK POSITIVE, AN HOUR AFTER THE ACCIDENT AT .02. MY QUESTION IS HOW WOULD THE WORKERS' COMPENSATION BOARD LOOK AT THE SITUATION IF I DENIED THIS CLAIM?
A. The level for presumed intoxication in Indiana is .08 grams per deciliter of blood. If this person was .02, then there would not be a presumption that he was intoxicated. The employer would have to prove that he was intoxicated and that the intoxication was the proximate cause for the accident. The cause issue is often difficult, because the employer would also potentially need to disprove other alleged causes. For example, if he says that he was distracted by a girl in a yellow dress calling to him, we might need to prove that there were no girls in yellow dresses there that morning. If he says that his vision was blocked by his load, the employer would need to establish that the load was too small to block his vision. The level of alcohol by breathalyzer is probably also subject to significant challenge. For the purposes of the Act, the employer would have to establish the accuracy of that and its relationship to the legal standard of .08 grams per deciliter of blood. If he was really .02, he is legal to drive an auto on I-69. This, it may be hard to prove that he was not capable of driving a forklift.
Q. I HAVE AN EMPLOYEE WHO IS ON SEDENTARY WORK RESTRICTIONS, AND HER EMPLOYER WAS ACCOMMODATING. HOWEVER, THE EMPLOYEE'S LOCATION CLOSED, AND ALL OF THE EMPLOYEES WERE LAID OFF. WOULD SHE NOW QUALIFY FOR TTD BENEFITS OR BE ELIGIBLE FOR UNEMPLOYMENT? SHE WAS TOLD BY UNEMPLOYMENT THAT SHE WOULD NOT QUALIFY FOR U/C UNTIL SHE IS RELEASED TO FULL DUTY WORK.
A. TTD is defined by the inability to do one's regular work. The employer can relieve itself of the obligation to pay TTD by providing restricted work. If the employer cannot do so, then TTD continues until the point of MMI is reached. The plant closure cannot relieve the employer of the TTD obligation or shift that obligation to the U/C system.
Robert Fanning
Due Doyle Fanning & Alderfer, LLP
January 20, 2008
