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indiana workers compensation attorney

Functional Capacity Exam (FCE)

Related terms include “Physical Capacities Evaluation” (PCE), “Functional Capacity Assessment” (FCA) or “Work Capacity Evaluation.”

A Functional Capacity Evaluation/Exam (FCE) is a series of tests designed to measure physical strength, ”range of motion”, stamina, and tolerance to functional activities, including lifting and carrying and will begin with an in-depth questionnaire.

In a workers’ compensation claim, the results of Functional Capacity Evaluation are typically used to develop return-to-work plans, as the basis of an offer of alternative employment, or as the foundation for a feasibility development plan (work-focused rehabilitation). An evaluator SHOULD ONLY use tests that have to do with the specific individual’s diagnosis and return-to-work goals or job demands.

These tests can be used to evaluate work tolerance and work restrictions, if necessary. The exam is used to determine the extent of the employee’s residual or permanent disability. Do your best, be honest, and remember there’s no right or wrong answer.

P.S. I can safely guess that you WILL NOT be jumping rope.

Does the Indiana Workers’ Compensation Act protect my job?

 

Workers Compensation Laws Indiana

Unfortunately, the Indiana Workers’ Compensation Act does not protect or secure an injured worker’s job after a work accident. The Act only bars an employer from firing an employee in retaliation against him or her for filing a workers’ compensation claim.

It is your right to pursue a claim under the Workers’ Compensation Act. However, injured workers sometimes find themselves getting written up or reprimanded for issues that would not have been a big deal in the past, once they do return to the job after a work accident. These issues may serve as a basis for the employer to fire the employee at a later time, or the employer may push the injured worker to feel like he or she should resign.

If you find yourself in a similar situation, you should consult with a qualified Indiana worker’s compensation attorney.

Workers’ Compensation & the Jones Act

 

The Jones Act provides benefits to seamen who work on-board a vessel in navigation and who are injured on the job. A seaman is someone who spends a substantial amount of his or her time on-board the vessel. For example, riverboat casino employees may be treated as seamen under the Jones Act.  Riverboat casino employees who have been injured on the job and are unsure of their rights should contact an attorney familiar with workers’ compensation and with the Jones Act.

Questions surrounding the Jones Act and whether employees falling under this law are eligible to receive Indiana workers’ compensation benefits have surfaced more recently. Some attorneys believe that employees under the Jones Act are still eligible for workers’ compensation benefits in Indiana. If your employer tells you otherwise, you should consult with an attorney about YOUR RIGHTS to workers’ compensation benefits.

Asbestos Exposure and the Residual Asbestos Injury Fund

 

According to the Guide to Indiana Worker’s Compensation Benefits, the following must apply in order for a worker exposed to asbestos on the job to be eligible for benefits through the Residual Asbestos Injury Fund:

  1. The employee is permanently and totally disabled by the work-related asbestos injury:
  • On or after July 1, 1985, from an exposure to asbestos in employment before July 1, 1988

OR

  • Before July 1, 1985, from an exposure to asbestos in employment and files a claim for benefits from the Residual Asbestos Injury Fund before July 1, 1990
2. Is not gainfully employed because of the disability left by this work exposure injury
AND

3. Is not eligible for benefits under the Indiana Occupational Diseases Act

The worker must also be ineligible for benefits from Social Security Disability, disability retirement, third party settlements or other retirement benefits that are equal to or greater than 66 2/3% of his or her average weekly wage at the time of disablement*.

If, however, the other benefits that the injured worker is entitled to are less than 66 2/3% of his or her average weekly wage at the time of disablement, the worker may be eligible to receive from this fund that difference for up to 52 weeks.

Dependents are eligible to receive either the remainder of the asbestos fund benefits or $4,000, depending on which is greater, should the injured worker die before the benefits from this fund run out.

Similar to the Second Injury Fund, and in accordance with Indiana Code §22-3-11-4, at the end of the 52 weeks, the Worker’s Compensation Board may decide to give the exposed employee additional benefits in 52 week increments as long as the employee still meets the eligibility guidelines cited above.

*Please note that the time of disablement, or in this case when it was determined that the injured worker is disabled due to the asbestos injury, and time of accident, which is used to calculate disability pay for other injuries, are very different terms.

Time Limits for Filing a Claim under the Indiana Occupational Diseases Act

 

The Indiana Occupational Diseases Act defines disablement by an occupational disease 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…Indiana Code §223-7-9(e).

In short, disablement means a worker is unable to earn full wages due to an occupational disease.

Understanding the Law

The Indiana Occupational Diseases Act provides that a worker with an occupational disease may not receive benefits unless the occupational disease causes disablement within 2 years from the last date of exposure to the harmful chemical or substance. Thereafter, an injured worker has 2 years from the date of disablement to file an Application for Adjustment of Claim (Form 29109) with the Worker’s Compensation Board of Indiana.

Death Benefits

For occupational diseases that result in death, the worker’s dependents may be eligible for benefits if the death occurs no more than 2 years after disablement and if the dependents file an AAC (Form 29109) with the Board within 2 years after the date of death.

Radiation Exposure

With regard to radiation exposure, a worker must file an AAC with the Board within 2 years from the date the worker had knowledge or by the exercise of reasonable diligence should have known of the existence of the injury and its causal link to his or her place of employment.

Asbestos Exposure

As for asbestos inhalation injuries, the law sets the following time limits based on the date of last exposure:

  1. If the last date of exposure is before July 1, 1985, the employee has 3 years from this fate to file a claim.
  2. If the last date of exposure is on or after July , 1985 but before July 1, 1988, the employee has 20 years from this date to file a claim.
  3. If the last date of exposure is on or after July 1, 1988, the employee has 35 years from this date to file a claim.
Need More Help?

As you can see, all of these time limitations regarding Indiana occupational diseases can be very tricky. If there is a question as to whether you can still file an Application for Adjustment of Claim, you may want to consult with an Ombudsman or a qualified Indiana worker’s compensation attorney.

Are federal employees covered by the Indiana Worker’s Compensation Act?

 

No.

Federal employees fall under the federal worker’s compensation system. Not all worker’s compensation attorneys are familiar with the federal worker’s compensation laws, so make sure you ask about this in your initial conversation with an attorney.

Besides federal employees, other common jobs not covered by the Indiana Worker’s Compensation Act include:

  • Railroad employees
  • Certain municipal police and firefighters
  • Volunteers
  • Farm & agricultural workers
  • Casual laborers
  • Real estate professionals
  • Household employees

Temporary Partial Disability (TPD): What Injured Workers Need to Know

 

The law in Indiana provides injured workers with three forms of disability pay: Temporary Total Disability (TTD), Temporary Partial Disability (TPD), and Permanent Total Disability (PTD).

Temporary Partial Disability

Temporary Partial Disability (TPD) is paid when an injured worker is only PARTIALLY unable to work for a TEMPORARY period because of a work-related injury. In other words, the injured worker is either limited in the number of hours he or she can work OR needs to be temporarily re-assigned to a job that earns less than what the worker earned prior to the job accident and the amount he or she earns in this temporary re-assignment is less than sixty-six and two-thirds (66 2/3%) percent of the difference between his or her average weekly wage before and after the injury.

Another way of stating this is if you return to your job with restrictions while still under the care of the worker’s compensation insurance carrier’s doctor, and the earnings you bring home are the same or more than the amount you received when completely off work and earning TTD benefits, then you will NOT be entitled to any additional disability pay. If, however, you are able to return to your place of employment, but what you bring home is less than what you would have earned if you were completely off work for the injury, then you will be paid this difference.

An injured worker can earn a maximum of 300 weeks of TPD pay.

Example:

Barbara is a cook for the local college. One day at work, she dropped a heavy pot on her foot, injuring a couple of her toes bad enough to require surgery. The doctor said she could return to work while her toes and foot healed if she was in a sit down job that allowed her to prop her foot. He also said she should work no more than four hours a day. Before the accident, Brenda worked 8 hours a day.

Barbara’s employer was able to meet her restrictions by having her work the cash register for 4 hours each day. Since she will be able to work while healing, Barbara is only PARTIALLY disabled from her job. Barbara’s toes will heal, so her disability is TEMPORARY.

In the above example, if Barbara’s income from this temporary, cash register job is less than 66 2/3% her average weekly wage before the accident, then she will receive the different in TPD benefits. However, if her income from working 4 hours a day as a cashier is equal to or more than 66 2/3% her average weekly wage before the accident, then she will not receive any TPD pay.

TPD Guidelines

Remember that before you receive any type of disability pay, the following must occur:

  1. Your claim has been accepted by the worker’s compensation insurance carrier.
  2. Their doctor has ordered you off work or put you on restrictions that your employer is unable to meet.
  3. You have been ordered off work for more than 7 days (not necessarily consecutive days).

End of TPD Benefits

You will no longer qualify for disability pay if your job can accommodate the doctor’s restrictions and you income is equal to or more than what you drew in  TPD benefits.

Once you have been released at maximum medical improvement by their doctor, your disability checks will stop even if you are unable to return to the job you held before the work accident. The only exception to this rule is a case involving permanent and total disability.

Depending on your situation, it is likely that you will receive notice from the insurance carrier when your disability pay is about to stop.

 

To learn more about other types of disability pay, like Temporary Total Disability, click here.

Temporary Total Disability (TTD): What Injured Workers Need to Know

 

The law in Indiana provides injured workers with three forms of disability pay: Temporary Total Disability (TTD), Temporary Partial Disability (TPD), and Permanent Total Disability (PTD).

Temporary Total Disability (TTD)

The Guide to Indiana Worker’s Compensation, written by the Worker’s Compensation Board of Indiana, says that TTD is paid when an injured worker is TOTALLY unable to perform his or her regular work for a TEMPORARY period because of a work-related injury. TTD is paid at sixty-six and two-thirds (66 2/3%) percent of the injured worker’s pre-injury average weekly wage (AWW), or the average wages he or she earned for the fifty-two week period prior to the date the injury occurred.

An injured worker can earn a maximum of 500 weeks of TTD pay.

Example: Jim, a construction worker, trips over some tools left out by one of his coworkers and breaks his ankle. Because of his on-the-job injury, Jim cannot perform his regular job duties and the company has no light duty jobs available that meet his injury restrictions. So, Tom is now TOTALLY disabled from his job. However, since a broken ankle will heal, Tom will only TEMPORARILY be disabled from his construction job. Until he is able to return, Tom will receive TTD benefits.

TTD Guidelines

Before you can receive any type of disability pay for your work injury, the following things must happen:

  1. Your claim has been accepted by the worker’s compensation insurance carrier.
  2. The doctor has ordered you off work or put you on restrictions that your employer is unable to meet.
  3. You have been ordered off work for more than 7 days (not necessarily consecutive days.
End of TTD Benefits

You will no longer qualify for disability pay if your job can accommodate the doctor’s restrictions and your income is equal to or more than what you drew in TTD benefits. Once you have been released at maximum medical improvement by their doctor, your disability checks will stop even if you are unable to return to the job you held before the work accident. The only exception to this rule is a case involving permanent and total disability.

Depending on your situation, it is likely that you will receive notice from the insurance carrier when your disability pay is about to stop.

Auto Accident Coverage under Worker’s Compensation

A common question Worker’s Compensation attorneys receive is: “If I am driving to or from work and I am involved in an auto accident, will this be covered under the Indiana Worker’s Compensation Act?”

The answer to this question depends on the situation. You may be covered if your work time begins when you leave your home and ends when you return, AND you were in a direct route to or from work, as opposed to making a pit stop to run a personal errand.

Employees are generally not covered while traveling to and from work, if the place of employment is at a fixed location. However, travel to remote work sites may be compensable. If an employee is injured while being transported to or from work/work sites in vehicles provided by the employer, then the employee is probably covered. Accidents occurring while traveling to or from work in the employee’s personal vehicle may be covered if the travel is required for work.

For further information regarding auto accident coverage under the Indiana Worker’s Compensation Act, you should consult a qualified worker’s compensation attorney.