2018 WORKER’S COMPENSATION LAW AND PRACTICE UPDATE

September 10, 2018 | By Klezmer Maudlin PC
2018 WORKER’S COMPENSATION LAW AND PRACTICE UPDATE

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  1. Midwest Equip. and Supply Co. v. Garwood, 87 N.E.3rd 33 (Ind. Ct. App. 2017)
Garwood suffered a compensable injury and the employer paid benefits.  However, a dispute arose as to whether a $20,000 profit sharing bonus that is tied to the company profits and a $1,750 shipping bonus that is tied to the work the individual performs should be included in the calculation of average weekly wage.  Garwood argued that the two (2) bonuses should be included in the calculation of average weekly wage pursuant to I.C. §22-3-6-1(d) that provides impertinent part that average weekly wage is defined as “the earnings of the injured employee in the employment in which the employee was working at that time of the injury during the period of fifty-two (52) weeks immediately preceding the date of injury divided by fifty-two (52).”  Midwest contended that the bonuses should not be included in the average weekly wage calculation because they we not governed by a written agreement, were not automatically paid, and were awarded through discretionary decisions made by management.  Further, Midwest argued that the profit sharing bonus was not based on Garwood’s output or performance.  Midwest cited cases from Illinois and Iowa where the courts held that bonuses should be excluded from the calculation of average weekly wage.  However, the Workers Compensation Acts in Illinois and Iowa include a provision that specifically excludes irregular bonuses from the definition of gross earnings.  Here, the Court affirmed the Board’s finding that the profit sharing and shipping bonuses should be included in the calculation of average weekly wage. The Court also considered whether the award given by the Board should be increased by the statutory minimum of 5% or by 10% as requested by Garwood.  Garwood argued that the appeal by Midwest was frivolous.  The Court held that the appeal was not frivolous because the issue of whether bonuses are included in gross earnings is a case of first impression.  Accordingly, the Court increased the Board’s award by the statutory 5%.
  • 4:7 and §5:4
  1. Family Christian World, Inc. v. Olds, 2018 App. LEXIS 138
Family Christian World, Inc., d/b/a Family Christian Center (“FCC”) is a church in Munster.  FCC hired Olds as a babysitter under the direct supervision of the senior pastors.  The babysitter did not have a set work schedule.  She accepted babysitting jobs with FCC only when the jobs did not conflict either with her other job in college dining hall or her college classes. The babysitter was found face down in a swimming pool, and despite efforts to resuscitate her, she died two (2) days later.  The babysitter’s parents filed a wrongful death compliant against FCC.  FCC filed a Motion to Dismiss for lack of subject matter jurisdiction stating that the exclusive remedy is workers compensation.  The trial court denied the motion. The Court, relying on the ten-factor test laid out by the Supreme Court of Indiana in Moberly v. Day,757 N.E. 2nd 1007, 1010-11 (Ind. 2001), determined that Olds was not an employee at the time of her death.  The factors identified are: a) extent of control of which by agreement a master may exercise over the details of the work;  b) whether or not the one employed is engaged in a distinct occupation or business;  c) the kind of occupation, with reference to weather, in the locality, the work is usually done under the direction of the direction of the employer or by a specialist without supervision;  d) the skill required in the particular occupation;  e) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;  f) the length of time for which the person is employed;  g) the method of payment whether by time or by the job; h) whether or not the work is a part of the regular business of the employer;  i) whether or not the parties believe they are creating the relation of master and servant; and  j) whether the principal is or is not in business. The Court held that the only factors that favor employee status were the fact that babysitting does not require special skills and that principal provided the place where she worked.  All other factors weighed in favor of an independent contractor.
  • 3:8
 
  1. Evansville Courier, Co. v. Uziekalla, 81 N.E.3rd 267 (Ind. Ct. App. 2017)(trans. denied)
This case has already been analyzed in the book but now there is a new site that includes the denial of transfer.   Statutory Amendments
  1. Effective July 1, 2018, IC 22-3-2-15 is amended to provide that any payment of compensation under an agreement authorized by this section must be made not later than thirty (30) days after the date the Workers Compensation Board approves the agreement. An employer that fails to comply with this subsection is subject to a penalty under IC 22-3-4-5.
  • 2:4
  1. Effective July 1, 2018, IC 22-3-2-22 is amended to provide that the employer must provide notice of the employer’s insurance carrier along with telephone number to mobile or remote employees in an electronic format or in the same manner as the employer conveys other employment related information. Changes to the information required under subsection (a) must be conveyed promptly to the employer’s employees in the same manner.
  • 5:9
  1. Effective July 1, 2018, IC 22-3-3-10.5 is added to the Act. It provides:
  2. a) The following must be tendered to an employee not later than fifteen (15) days after the date of the physician’s statement described in subdivision (2):
1)  A proposed permanent partial impairment agreement; 2)  The associated physician’s statement required by IC 22-3-3-6(c). 3)  The employer employee waiver of examination. 4)  A hand/foot chart, if necessary.
  1. b) A permanent partial impairment signed by the employee along with the supporting documentation listed in subsection (a) must be submitted to the Workers Compensation Board for approval not later than fifteen (15) days after the date of the receipt from the employee.
  2. c) Not later than thirty (30) days after the date the Workers Compensation Board approves the permanent partial impairment agreement:
(1)  Of the following amounts must be paid: (a)  the first weekly installment of compensation for permanent partial impairment. (b)  the lump sum, if the compensation is to be paid in a lump sum amount.
  1. d) An employer that fails to comply with subsection (c) is subject to a civil penalty under IC 22-3-4-15.
  • 4:8
 
  1. Effective July 1, 2018, IC 22-3-3-13 is amended to prove that awards under the Second Injury Fund may not exceed three years.
  • 4:10
 
  1. Effective July 1, 2018, IC 22-3-3-24 is amended to provide that an award of compensation ordered by a single hearing member of the Workers Compensation Board must be paid not later than thirty (30) days after the date of the award, or as the award provides, if the award is not appealed to the Full Board. An employer that fails to comply with this subsection is subject to a civil penalty under IC 22-3-4-15.
  • 5:3
  1. Effective July 1, 2018, IC 22-3-4-13 is amended to provide that an employer record injuries that either actual, alleged, or reported under IC 22-3-3-1, and that causes an employee’s death or the need for medical care beyond first aid a report concerning the injury shall be made in writing or mailed or submitted electronically to the employer’s insurance carrier, or if the employer is self-insured, delivered to the Workers Compensation Board. The reporting requirements are intended to be consistent with the recording requirements set out in the United States Occupational Safety and Health Administration (OSHA) regulations found at 29 CFR 1904.7.
  • 5:9
IC §22-3-7-37 includes the same amendments for matters arising under the Occupational Diseases Act.
  • 7:10
  1. Effective July 1, 2018, IC 22-3-4-15 is amended to provide that the Board may assign a civil penalty for failure to pay compensation under an approved settlement as required by IC 22-3-2-15(d); failure to timely pay compensation for permanent partial impairment as required by IC 22-3-3-10.5(c) and failure to timely pay a compensation award is required by IC 22-3-3-24(a).
  • 5:9
  1. Effective July 1, 2018, IC 22-3.5-2.5 is amended by changing the amount of the civil penalty from fifty ($50) to one hundred dollars ($100) per day beginning on the date of the request under subsection a and ending on the date compliance occurs.
  • 5:9
IC 22-3-7-34.3 includes the same amendments for matters arising under the Occupational Diseases Act.
  • 7:10
  1. Effective July 1, 2018, IC 22-3-6-1 is amended to include a limited liability company, or limited liability partnership that controls the activities of another corporation, limited liability company, or limited liability partnership, or a corporation and a limited liability company or a corporation and a limited liability partnership that are commonly owned entities, or the controlled corporation, in the definition of employer.
 
  • 3:3
  IC 22-3-7-9 includes the same amendments for the definition of employer for matters arising under the Occupational Diseases Act.  
  • 7:5
 
  1. Effective July 1, 2018, IC 22-3-3-4.7 is added which provides that all medications prescribed for workers compensation medical treatment must be approved by the Official Disability Guidelines (ODG) workers compensation drug formulary Appendix A published by MCG Health. The list of allowable medications in Appendix A are designated as “Y” for yes or “N” for no.  Beginning January 1, 2019 reimbursements for payments of medications are not permitted for a drug that is prescribed for use by and employee and according to the formulary is an “N” drug.  However, if the employee begins the use of the “N” drug before July 1, 2018, and continues after July 1, 2019, reimbursement is permitted for the “N” drug until January 1, 2020.  IC 22-3-4-4.7 also provides that the prescribing physician can submit a request to the employer to permit use of an “N” drug; if the employer approves the request the prescribing physician may prescribe the “N” drug.  However, if the employer does not approve the prescribing physician’s request to use a “N” drug, the employer shall send the request to a 3rd party that is certified by the Utilization Review Accreditation Commission to make a determination concerning the request and notify the prescribing physician and the injured employee of the 3rd party’s determination not more than five (5) business days after receiving the request.  Certain exceptions can be made in a medical emergency.
 
  • 4:4
  IC 22-3-7-17.6 which makes the same requirements is added to matters arising under the Occupational; Diseases Act.  
  • 7:8
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