How long does it take to get a worker’s compensation hearing before a Judge?
Every case is different. Most workers’ compensation claims are settled without a hearing. The Workers’ Compensation Board of Indiana requires both parties to make attempts to settle their disputed issues on their own before bringing them in front of a Judge. Going through this process can take some time.
Hearings are scheduled in either the county where the injury occurred, the county where the employer is located, or a county nearby.
Does the Indiana Workers’ Compensation Act protect my job?
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 Americans with Disabilities Act (ADA)
If you have a condition that significantly reduces or limits your ability to work, you may be considered disabled according to the Americans with Disabilities Act (ADA) and therefore protected by this federal law.
The ADA applies to any employer with 15 or more employees. The Act says that an employer cannot discriminate against workers with disabilities. This includes those who may be a candidate for a position as well as those who already hold a position, such as an injured worker who is left with a disability due to a work accident, but who wants to return to his or her place of employment.
An injured worker whose work abilities have been limited by a work accident will probably be evaluated by a doctor to find out how well he or she can perform the necessary duties of the job. If the worker’s condition limits him or her from performing job tasks that are not critical to the job, then the ADA would require these tasks be reassigned. In a similar manner, if the task that the worker is unable to do are critical to the job, then the ADA requires the employer to consider a reasonable accommodation that would help the worker to still complete this task. This might include special equipment or a device that relieves some of the physical nature of the worker’s job; however, the law does not clearly define this term.
Vocational Rehabilitation for Injured Workers
Vocational rehabilitation may be available to you as an injured worker if you are not able to return to the job you were doing before the work accident. However, the Workers’ Compensation Act does not require the employer to pay for this additional treatment. The Office of Vocational Rehabilitation [(317) 232-1319] can assist you with questions regarding this process.
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.
Social Security Disability & Workers’ Compensation
Sometimes, workers sustain a work injury that leaves them unable to return to their former job or a similar job. Since permanent total disability (PTD) benefits are not a guarantee for an injured worker who cannot return to his or her prior job or place of employment, these individuals might be forced to seek benefits elsewhere.
Consequently, social security disability (SSD) benefits may be pursued by the injured individual. This often leads to the question of whether SSD benefits will be reduced if the worker is also receiving TTD benefits from workers’ compensation. To determine if there will be a reduction in SSD benefits, a specific formula needs to be followed. Here is how you can determine whether your workers’ compensation benefits will affect drawing social security pay early due to a work-related disability:
- If the total of your combined monthly workers’ compensation and social security benefits (including what others in your household draw) exceeds 80% of your gross average earnings per month (average current earnings) prior to the disability, then your SSD benefits will be reduced so that you do not exceed this 80% level
- Example: Donna draws $1,000 from SSD per month. Her husband draws $1,500 per month. Donna is also drawing $548 from workers’ compensation each month. Thus, benefits in this household total $3,048. Donna’s gross average earnings per month before she became disabled from a work accident was $3,500. Since 80% of $3,500 equals $2,800, the amount that Donna and her family draws from SSD will have to be reduced by $248 (the difference between $3,048 and $2,800) in order to meet the 80% requirement.
OR
2. If your monthly social security disability pay alone is more than 80% of your gross average earnings per month prior to the disability, then your SSD benefits will be reduced so that the combination of drawing these events along with workers’ compensation benefits does not exceed the amount over 80% that you drew just through SSD income.
- Example: Dennis draws $1,300 from SSD per month, while his son draws $300. In total, Dennis’ household receives $1,600 from SSD each month. This does not account for what Dennis earns from workers’ compensation. Dennis’ gross average earnings per month prior to the disability was $1,800. 80% of $1,800 equals $1,440. In this case, since the SSD benefits are more than the 80% requirement, the $1,600 will serve as the maximum standard of benefits level. Thus, the SSD benefits will be reduced so that the combination of this plus Dennis’ workers’ compensation benefits does not exceed $1,600.
On the other hand, workers’ compensation disability pay will not be part of the earnings that determine what you can get from social security disability when you do become eligible to draw it. In other words, if you had a work accident in 1992 and you received 11 weeks of temporary total disability pay that totaled $2,500, then the Social Security Administration will not recognize the $2,500 as part of your total earnings for 1992. This is because social security taxes are not taken out of workers’ compensation disability income.
Can my workers’ compensation pay be garnished by a collector?
Your workers’ compensation pay cannot be garnished by a collector or an attorney representing the interests of another party. However, once you return to work, even if you are still receiving medical treatment from the workers’ compensation doctor, your wages can be garnished.
Also, deductions cannot be taken out of your paycheck for workers’ compensation insurance. If this happens, the employee should contact the Employment Standards Division at (317) 232-2655.
Using Sick, Personal, and Vacation Days During Your Workers’ Compensation Claim
The employer cannot force an injured worker to use his or her vacation, personal, or sick days in place of receiving disability benefits in a workers’ compensation case.
Nonetheless, when an injured worker is not receiving workers’ compensation benefits because his or her claim has been denied, it may be necessary for him or her to use this approved time off in order to avoid violating the company’s policy for unexcused absences. Violating such might lead to the injured worker getting fired, and the Workers’ Compensation Act does not protect an injured worker from this happening.
The law also does not require employers to continue to offer vacation, personal, or sick days while the injured worker is off on total or partial disability. However, if you have a collective bargaining agreement, that agreement may require your employer to continue to offer these benefits.
Types of Settlement Agreements in a Workers’ Compensation Claim
Section 15 settlements are full and final, which means you waive your rights to reopen your claim in the future. It is important to note that settling a work-related claim on a Section 15 basis only bars you from reopening that particular claim within the 2-year statute of limitations. New claims for either an aggravation of a prior injury or a completely new injury are still allowed. This would be true even if you were re-injured at the same place of employment. This type of settlement will be presented to the injured worker through a Stipulation for Full and Final Settlement usually prepared by the employer’s insurance carrier or attorney.
The other type of settlement that does not waive future rights to the claim, given that the time constraints are met, is usually issued through an Agreement to Compensation of Employee and Employer (Form 1043). Be aware that a Stipulation for Settlement, which is different than a Stipulation for Full and Final Settlement, may also be used to settle claims and does not waive your rights to reopen a claim.
Therefore, an injured worker should review his or her settlement papers very closely before signing them. Sometimes, a Section 15 settlement agreement is offered to an injured worker by the workers’ compensation insurance carrier or the employers’ attorney when it is inappropriate to do so. In these cases, the other party may be acting in bad faith.
If you have any questions about your settlement agreement, you should consult with an attorney.
Can I reopen my settled workers’ compensation claim?
According to Indiana law, as stated in the Guide to Indiana Workers’ Compensation, one may reopen a claim for the following reasons:
- The light duty assigned by the employer is no longer available.
- The injured worker becomes temporarily totally disabled (unable to work).
- The injured worker suffers a condition change or the condition worsens due to the injury.
- Impairment from the original injury is now evident.
- Permanent partial impairment increased from what it was at the time of the original PPI settlement.
To reopen a claim due to any change in condition, directly related to the original injury, an Application for Adjustment of Claim (Form 29109) must be filed with the Workers’ Compensation Board within 2 years from the last date for which you were paid compensation. Compensation includes temporary disability income, a permanent partial impairment award, and permanent total disability income. It does not include the last date a medical expense was paid. Determining the precise date that compensation was last paid can be confusing, and an attorney should be consulted to assist in reopening a case.
Please note that there are time when a case cannot be reopened because of the type of settlement that was agreed upon. For instance, if you signed a Section 15 Settlement Agreement– a full and final settlement agreement– when you originally settled your claim, then you may not be able to reopen your case.