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.

Sub part (a) states: "…the employer shall furnish…free of charge to the employee, an attending physician for the treatment of his injuries…"

• The employer or its insurer chooses the treating physician. The employee does not chose the treating physician.
• Furno v. Citizens Insurance Co. of America, 590NE2d1137 (Ind.App.1992)
• An employee is not free to elect at the employers expense additional treatment or physicians other than those tendered by the employer.
• Daugherty v. Industrial Contracting & Erecting, 802NE2d912 (Ind.2004)

Sub part (a) also states: "…the treatment of his injuries…as the attending physician or the Worker's Compensation Board may deem necessary."

• There is nothing in this section to suggest that it is the employer or its insurer rather than the attending physician who determines the scope and nature of the treatment.
• Young v. Marling, 900NE2d30 (Ind.App.2009)
• The fact that an unauthorized doctor expects that the treatment will help is sufficient evidence upon which the Board may conclude that the treatment was necessary.
• Montgomery Aviation, Inc. v. Hampton, 650NE2d77 (Ind.App.1995)

Sub part (c) states: "The refusal of the employee to accept such services and supplies, when provided by…the employer, shall bar the employee from all compensation otherwise payable during the period of the refusal, and his right to prosecute any proceeding…shall be suspended and abated until the employee's refusal ceases. The employee must be served with a notice setting forth the consequences of the refusal under this section."

• Written notice is required before benefits may be suspended even if the employee knew that the employer must authorize medical treatment or where the employee refused the tendered medical treatment.
• Krause v. Indiana University – Purdue University at Indianapolis, 866NE2d846 (Ind.App.2007)

Sub part (d) states: "If, because of an emergency, or because of the employer's failure to provide an attending physician…or because of any other good reason, a physician other than that provided by the employer treats the injured employee…the reasonable cost of those services and supplies shall, subject to the approval of the Workers' Compensation Board, be paid by the employer."

• The Workers' Compensation Act allows the employee to select medical treatment under three specific circumstances.
• Richmond State Hospital v. Waldron, 446NE2d1333 (Ind.App.1983)
• The fact that the unauthorized treatment is generally accepted, or that the employee has more confidence in his family doctor, or that the employee lacks confidence in the attending physician does not constitute "good reason".
• The test for "good reason" is as follows: "If the employee, without authorization but in good faith, obtains medical treatment different from that provided by the employer, and it is determined that the treatment provided by the employer was inadequate treatment for the employee's condition and the unauthorized treatment received by the employee was medically reasonable and necessary treatment, then the employer should be responsible, notwithstanding the lack of prior approval by the employer."
• A dispute over appropriate care where the employer's doctor and the employee's doctor disagree, is not a failure to provide an attending physician.
• Daugherty v. Industrial Contracting & Erecting, 802NE2d912 (Ind.2004)

The Board's jurisdiction to adjudicate medical disputes has also been the subject of litigation and interpretation. There are two statutes of limitation which govern the right to invoke the Board's jurisdiction to resolve disputes,

IC 22-3-3-3 Limitation for filing claim. – The right to compensation under IC 22-3-2 through IC 22-3-6 shall be forever barred unless within two (2) years after the occurrence of the accident, or if death results therefrom, within two (2) years after such death, a claim for compensation thereunder shall be filed with the Workers' Compensation Board.

• This provision has been held to be a non-claim provision rather than a general statute of limitation and thus claims are barred two years after the accident and cannot be saved by waiver or stipulation.
• Wawrinchak v. United States Steel, 267NE2D395 (Ind.App.1971)

IC 22-3-3-27Change or modification of award – Limitation – (a) The power and jurisdiction of the Workers' Compensation Board over each case shall be continuing and from time to time it may, upon its own motion or upon the application of either party, on account of a change in conditions, make such modification or change in the award ending, lessening, continuing, or extending the payments previously awarded, either by agreement or upon hearing as it may deem just, subject to the maximum and minimum provided for in IC 22-3-2 through IC 22-3-6. *** (c) The Board shall not make any such modification upon its own motion nor shall any Application therefore be filed by either party after the expiration of two (2) years from the last day for which compensationwas paid.

• The provision of and payment for medical treatment is not "compensation" for the purposes of tolling the statute of limitation for a change of condition.
• Berry v. Anaconda Corp., 534NE2d250 (Ind.App.1989)
• The limitations of this section for the modification of awards does not deny due process even though the limitation period may already have expired when the award was entered.
• Gibson v. Industrial Board, 376NE2d502 (Ind.App.1978)
• But, if the Indiana Workers' Compensation Board has jurisdiction of a claim, then the Board may order the employer to pay future medical expenses despite the fact that those medical expenses would be paid after the statute of limitation to reopen the claim has expired.
• Bloomington Hospital v. Stofko, 705NE2d515 (Ind.App. 1999)
• The medical benefits which may be ordered in the future extend to palliative steps useful only to prevent pain and discomfort.
• Grand Lodge Free an Accepted Masons v. Jones, 590NE2d653 (Ind.App.1992)

In the vast majority of cases in Indiana, the employer provides statutory medical benefit pays, temporary total disability compensation, if necessary, has the employee evaluated for permanent partial impairment, and pays such impairment. The case is then closed, pending an Application to reopen the same based upon a change of condition within two years after the last day for which compensation was paid. If no such Application to reopen is timely filed, then the Board loses jurisdiction, and no further order may be made with regard to either medical treatment or compensation. In other words, the obligation of the employer to pay medical expenses ends by operation of law, and the employer is no longer primarily responsible for the provision of medical treatment. If the employee needs such treatment, he must look elsewhere.

There is no case law in Indiana which obligates the employer to advise the employee as to his or her rights under Indiana law. Thus, the employer is not required to tell the employee when the statute of limitations will run or that the right to future medical treatment will end unless an Application is filed prior to the running of the statute of limitation. The employer has no obligation to enter into a "settlement" with regard to the possibility of future medical treatment prior to the running of the statute of limitations. But, the question is whether the employer's obligations to Medicare require that the employer undertake a different approach than that outlined above. In other words, must the employer evaluate the possibility of future medical in every case and settle that possibility with the employee and Medicare before the statute of limitation runs?

Old Rule: Don't worry about future medical expenses; they will be covered by Medicare.

New Rule: Worry about everything which might involve Medicare.