work comp

Doctor Claims Injury is Not Work-Related, What Now?

QuestionWhat if I reported my injury and there is no written report made? I was sent to a doctor who would not even look at my hand because he said it was not due to some immediate accident or trauma. He said that the Indiana Workers’ Compensation law does not cover any injury that is gradual over time due to repetitive motion unless you are a secretary and typing. He told me it was not work related because of this and did not examine the hand. I have requested a second opinion. I also asked for a copy of the injury report and was told there isn’t one. The plant manager is out of town and is doing it over the phone.

Answer: The doctor told you wrong. I would be interested in knowing who your employer is and who the doctor is. Sometimes the doctor works very closely with the employer and their opinions are influenced by the employer.

You absolutely can have a condition that is a result of repetitive use or trauma. I suspect you are talking about carpel tunnel syndrome which is a very common condition in many professions, not just typists. For instance, truck drivers and factory line workers often develop carpel tunnel syndrome as a result of their employment. There can also be issues related to a condition called trigger finger or trigger thumb that can be work related and results from employment activities.

In Indiana, employers must pay the compensation and benefits provided under the Workers’ Compensation Act when the following four elements of a worker’s compensation claim are met. If the employer/carrier denies a worker’s compensation claim and the dispute is heard by the Board, the employee has the burden of proving each of the elements.

  1. personal injury or death;
  2. by accident;
  3. arising out of the employment; and
  4. in the course of employment.

“Injury” and “personal injury” mean only injury by accident arising out of and in the course of employment and do not include a disease in any form except as it results from the injury.

“By accident” means that the injury was unexpected. To occur “by accident,” the injury may be either an “unexpected event” or an “unexpected result.” Under the “unexpected result” theory, the injury to the employee may be the combined injurious effect of repetitive motions.  The definition of “by accident” as both an unexpected event and an unexpected result means that a broad range of injuries is potentially compensable in Indiana.

As to your employer’s refusal or failure to report your injury. Ind. Code §22-3-4-13(a) requires that employers file the Employer’s Report of Injury with the Workers’ Compensation Board if an injury results in the death of an employee or in the employee’s absence from work for more than one (1) day. Failure to comply with reporting provisions may subject the employer/carrier to a $50 civil penalty to be collected by the Board. This report must be filed with the employer’s insurance carrier. Sometimes, employers try to avoid reporting work conditions because they want to avoid increases in their premiums for workers’ compensation insurance because of the reports of injuries or work conditions.

If you have found yourself in this situation, you probably want to utilize the help of a lawyer to fight for what you’re owed. Contact our office at 317.569.9644 today.

Have a question for us? Send an email to rklezmer@klezmermaudlin.com for help.

TTD For Other Employment

Temporary Total Disability (TTD) is paid when an injured worker is only PARTIALLY unable to work for a TEMPORARY period because of a work-related injury.

 If you’re injured on a job and also have a 2nd job, our Indiana Workers’ Compensation Act mandates that your lost wages for all employment be considered in the calculation of your TTD pay.  However, only if the two jobs are “similar”, at the time of the accident.  For example, if you worked in retail sales for two employers, these positions might be considered similar.  If, however, you are hurt at your retail sales position and your second job is in construction, these positions are likely not similar and your TTD pay will only be based on the job where you were injured.

For more information on this or other topics, please contact our office at 800-809-3776.

What is a mediation and when is it necessary?

Mediations are becoming more and more popular in workers’ compensation cases. A mediation is a meeting in the presence of the insurance company’s attorney, a neutral third party called a mediator (usually an attorney or a representative of the Indiana Workers’ Compensation Board), the injured worker and his/her attorney.

The Board requires that attempts be made to settle a workers’ compensation claim before having a formal hearing. Recorded statements, depositions and interrogatories are all conducted so parties have a better understanding of the work accident claim and what might realistically be a fair settlement to offer to avoid having to go to court.

Mediations are a last ditch effort to settle a case before it would go to court. Mediations usually take 1 to 4 hours and the goal at mediation is to settle the case. Mediation is voluntary, so you cannot be forced to settle and the insurance company cannot be forced to offer more than it feels comfortable offering. You will not testify at mediation, but you will simply listen. Your attorney may have questions for you during mediation, but you will not be put on the spot. Mediation generally takes place in an informal setting such as a conference room or law office.

How can I receive the form that lets me get an Independent Medical Examination (IME)?

 

If you have not received a form that lets you get an independent medical examination (IME), but you have been released from the worker’s compensation doctor, then you can contact the worker’s compensation insurance carrier and ask about it.

If you find out that you are not eligible for an independent medical examination (IME) through the Board, then you can seek one at your own expense and try to use your doctor’s report as leverage to get your benefits reinstated. Obviously, this would only happen if the doctor’s report is favorable to you.

If you do seek an IME, make sure you select a doctor with an excellent reputation or the Board may discount your doctor’s opinion.

Current Notice from the Indiana Worker’s Compensation Board

 

Notice: The following is a brief clarification regarding permanent partial impairment (PPI) ratings to the shoulder and hip.  Please note that when injuries are specific to either of those body parts, because both are part of the torso, the impairment rating should be made to the body as a whole.  This explanation is intended to provide clarity and direction to all involved parties, particularly physicians, who make the actual assessments on which we all rely.  Please contact Kathy Haynes for assistance with the calculation of ratings.

Notice: The 2012 Self-Insurance application and guidelines are now available.  Please click here for more information and to download these forms.

Notice: Effective May 21, 2012, the Worker’s Compensation Board ofIndiana will require that all filings be made on the most recent State form.  These forms are available on our website and notice will be given via e-mail to our newsletter subscribers when a form has been amended.  Filings made on outdated forms will be rejected and may subject the filer to penalties related to tardiness.

[via WCB]

Are pre-existing conditions that have been aggravated by a work injury covered by the Indiana Worker’s Compensation Act?

Yes, if the work accident caused aggravation of the prior condition, then what has been aggravated should be covered.

Aggravating a prior injury or condition

Aggravation of a prior injury or condition is covered if the aggravation occurs by accident, arising out of and in the course of employment. However, the employer is only responsible for the part that was aggravated and the increase in impairment that may result. The extent of aggravation is typically left up to a doctor to clarify.

Example:

Cheryl has had problems with her right elbow since childhood. However, her condition was not serious enough to require surgery.

Recently, Cheryl slipped on some ice in the employee parking lot on her way into work which caused further injury to her right elbow. As a result, she underwent several surgeries and was assigned a permanent partial impairment rating to her right elbow by the orthopedic surgeon.

There are a couple of points to note from this example.

  • First, injuries that occur in employee designated parking areas during the time that the employee would be expected to enter or exit the place of employment, are usually covered by the Indiana Worker’s Compensation Act.
  • Secondly, although in this particular example it is easy to see that the work accident did indeed aggravate Cheryl’s prior condition to her right elbow, not all cases of aggravation are this obvious. Therefore, a specialist (like an orthopedic surgeon) will be asked to distinguish between the employee’s prior and more recent problems. The worker’s compensation insurance carrier will only be responsible for the part that was made worse by the work accident.

 

Court of Appeals Rules Independent Contractor’s Death Already Properly Compensated

The Indiana Court of Appeals determined that the estate of an independent contractor who died after falling off a ladder has been properly compensated through the state Workers’ Compensation Act. Therefore, the estate cannot claim at a later date that his injuries occurred outside the scope of employment.

The Indiana Court of Appeals has determined that the estate of an independent contractor who fell off a ladder and died was properly compensated through the state workers’ compensation act, and the man’s estate cannot later claim that his injuries occurred outside the scope of employment.

In The Estate of Donald Eugene Smith v. Joshua Stutzman d/b/a Keystone Builders, No. 43A01-1103-PL-136, an appellate panel affirmed the judgment of Kosciusko Superior Judge Duane Huffer in dismissing the estate’s lawsuit against Keystone Builders.

Eugene Smith, who worked for Keystone Builders, broke his neck and died when he fell 20 feet from a ladder in March 2010. Smith’s widow and estate agreed that Smith’s workers’ compensation claim would be settled for a lump-sum settlement of $100,000. In October 2010, however, the estate filed a complaint against Joshua Stutzman, alleging that Smith’s death was the result of Stutzman’s negligence in maintaining a safe workplace. Since Smith was an independent contractor and not an official employee, the estate argued that the claim was valid.

The trial court entered a default judgment against Stutzman, but ultimately dismissed the case in Stutzman’s favor because the Worker’s Compensation Board has exclusive jurisdiction.

Applying its own caselaw about workers’ compensation coverage, the appellate panel also relied on Sims v. U.S. Fidelity & Guar. Co., 782 N.E.2d 345, 349-350 (Ind. 2003), in which the act’s exclusivity provision bars a court from hearing any common law action brought by an employee for the same injury.

On the issue of whether Smith was an employee, the parties agreed to resolve those differences via a settlement agreement.

National Labor Board Holds Authority in 7th Circuit Dispute – Copeland v. Penske Logistics

The 7th Circuit Court of Appeals maintained that the National Labor Relations Board has the authority to hear a complaint from employees who bring a hybrid lawsuit against an employer and labor union.

In Beverly K. Copeland, et al. v. Penske Logistics LLC; Penske Logistics, Inc.; and Chauffeurs, Teamsters, Warehousemen and Helpers Local Union Number 135, No. 11-1955, former Penske Logistics employees filed suit when they grew dissatisfied with the compensation package offered by Penske when the company lost its contract with The Indianapolis Star—its only client. Penske provided transportation services for The Star. The lawsuit claimed that the company did not provide its employees all the appropriate benefits available to them under its contract with The Star. The suit also claimed that the union should be found liable for failing to bargain with Penske in good faith to ensure all benefits would be secured for the employees.

Chief Judge Frank Easterbrook wrote in the 7th Circuit opinion: “As a hybrid action, it is doomed by the fact that the plaintiffs do not even contend that Penske Logistics failed to implement the collective bargaining agreement.”

The appellate panel held that the good faith claim is a matter under the jurisdiction of the National Labor Relations Board. This affirmed the District Court’s grant of summary judgment favor of the defendants in the matter of fair representation. The appellate panel remanded for dismissal of the good faith claim, citing lack of subject matter jurisdiction.