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.
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:
- 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:
- If the last date of exposure is before July 1, 1985, the employee has 3 years from this fate to file a claim.
- 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.
- 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.