2017 WORKER’S COMPENSATION LAW AND PRACTICE UPDATE
Case Law Update
- MasterBrand Cabinets v. Waide, 72 N.E.3rd 986 (Ind. Ct. App. 2017)
In Waide, the issue is whether the claimant was entitled to TTD benefits following an on-the-job injury and after he was terminated from his job for misconduct. The misconduct included the claimant getting in to a verbal altercation with the supervisor regarding his back pain. He threw an ice pack nearly striking another employee and cursed at his supervisor. He was initially suspended and later terminated by the employer. The employer argued that TTD was not due because the Plaintiff was unavailable to work for reasons unrelated to the work injury pursuant to IC 22-3-3-7(c)(5). The Court interpreted that statute as meaning that relevant inquiry is whether the inability to work, even for other employers, is related to the injury. The Board had found that the claimant’s inability to work was related to the injury and the Court affirmed that finding awarding TTD.
- Vinup v. Joe’s Construction, LLC, 64 N.E.3rd 885 (Ind. Ct. App. 2016)
In Vinup, the issue was whether Plaintiff was working as an independent contractor or employee at the time of his injury. The claimant filed a lawsuit in state court against the employer seeking damages for personal injury. The trial Court found that Vinup was an employee and granted the employer’s insurance company’s Motion for Summary Judgment. The Court of Appeals applied a 10 factor analysis to determine whether one acts as an employee or independent contractor. The factors are:
- Extent of control the master exercises over the details of the work;
- Whether the one employed is engaged in a distinct occupational business;
- The kind of occupation and whether the work is usually done under the direction of an employer or by a specialist without supervision;
- The skill required in the particular occupation;
- Whether the employer or workman supplies the instrumentalities, tool and place of work for the person doing the work;
- The length of time for which the person is employed;
- The method of payment whether by time or by the job;
- Whether the work is part of the regular business of the employer;
- Whether the parties believe they are creating the relation of employee or independent contractor; and
- Whether the principal is or is not a business.
The Court recognized that although no single factor is dispositive, the extent of the control factor is the single most important factor in determining the relationship. The Court then pointed to the evidence that the employer determined the worker’s schedules, had the power to remove the claimant from his employment, provided the tools and equipment, and held that the control factor weighs in favor of the employee status. Next the Court considered whether the type of work (digging trenches for water pipes) would normally be done by a specialist or under the supervision of an employer in the locale. The Court, relying on evidence designated by the employer, held this work is typically done under the direction and supervision of an employer in this locale. The Court then held that Vinup performed general labor that consisted of digging trenches, laying water line pipe and sometimes driving a dump truck. Vinup also admitted that he was doing unskilled labor which did not require any special instruction or supervision. From that admission, the Court held that Vinup failed to show that he was performing skilled labor while working for Joe’s Construction, LLC. Next, the Court considered the length of time Vinup would be employed. Vinup had accepted the job to earn money to repay a loan he had accepted from the employer. Vinup argued that his employment would be a short term endeavor indicating an independent contractor status. However, the Court noted that Vinup had no other employment during the time that he worked for the employer, that he expected to complete the work on this project, generally eight hours per day, and it would last several months. The Court held that these circumstances indicate an employer/employee relationship over a period of time with regular hours. The Court then considered the method of payment and held that Vinup was paid an hourly wage and not according to completion of a job or project. The Court considered whether the parties believed that they were creating an employer/employee relationship. The Court noted that even though there was a letter from Vinup’s attorney stating that he was an independent contractor and not an employee, the relevant inquiry is what the parties believed. The employer believed Vinup to be an employee and Vinup considered the employer to be the boss. The Court concluded that the Trial Court correctly granted summary judgment and held that the Vinup was an employee of Joe’s Construction, LLC.
- Morris v. Custom Kitchen and Baths, 64 N.E.3rd 92 (Ind. Ct. App. 2016)(trans denied 217 Ind. Lexis 183 Ind. Mar.2, 2017)
Morris operated a sole proprietor business known as Custom Kitchen and Baths. He was very involved in volunteer community activities for the Boy Scouts of America, various churches, and other community organizations. On the day he was injured, he was working on a shed for a local church which was a project for an Eagle Scout. He was injured and the Worker’s Compensation Board denied his claim because he was not in the course of employment due to the fact that his work was volunteer. However, at the hearing, Morris produced witnesses that testified that they in fact hired his company to perform work based on the fact that he had performed volunteer work around the community and they knew that he was a talented worker. Morris argued that the work he was performing at the time of his injury benefited his business by creating good will and a positive reputation. The Court of Appeals analyzing cases involving recreational activities agreed holding that the work he was providing did in fact promote his business and therefore the Court reversed the Board’s denial of compensation.
- O’Keefe v. Top Knotch Farms, 217 wl3185279.
O’Keefe claimed that he was not an agricultural worker because he primarily drove a semi truck. The Court, in affirming the Board’s denial of compensation, held that to determine whether work is agricultural in nature and therefore excluded from the Worker’s Compensation Act, the Court will look to the “whole character” of the work. O’Keefe was hired to complete general tasks required around the farm. His tasks included washing manure off the farm trucks, painting walls of the farm shop, sweeping the granary, servicing trucks, and hauling corn, soybeans and manure. The Court noted that the tasks he performed as a semi truck driver were integrally related to the work of the farm. The Court distinguished a case known as Gerlach v. Woodke, 881 N.E.2d 1006 (Ind. Ct. App. 2008) where the worker was hired primarily to perform maintenance work and only began to take on other agriculturally-related work when other employees quit. O’Keefe’s work was primarily agricultural and therefore he was exempted by the Worker’s Compensation Act.
- Ward v. Lowes, 76 N.E.3rd 918 (Ind. Ct. App. 2017)
Ward suffered an injury while in the employ of Lowes on July 6, 2010. Specifically, the injury was to his left ankle and left foot. About two weeks after the injury, Ward arrived at the hospital and was diagnosed as suffering from deep vein thrombosis in his lower left leg secondary to his toe fracture. He was prescribed Coumadin. On October 13, 2010 the doctor noted improvement of the pulmonary embolism and he was released to return to work with no restrictions on December 20, 2010. Ward took Coumadin for approximately six to seven months before discontinuing it in March of 2011.
In December of 2011, Ward left Lowes employ and moved to Chicago working through a temp agency doing construction and various other physical labor at a Walmart store. The work was very intensive. On May 26, 2012 he began to experience chest pain and shortness of breath. He was diagnosed with acute to subacute left pulmonary embolism and deep vein thrombosis. At that time, it was determined that he would need life long anticoagulation medication. The Single Hearing Member denied Ward’s claim for compensation finding that his condition was either related to an idiopathic aggravation of a pre-existing condition and/or his extensive physical labor at his new job in Chicago in 2012. The Board affirmed the Singe Hearing Member’s decision. The Court of Appeals noted that the subsequent incident or accident which results in a new different or additional injury can be compensable if it is considered as the proximate natural result of the original injury. However, the Court also noted that the general rule that if the subsequent incident or accident constitutes an independent intervening event, the chain of causation is broken and the employer is relieved of responsibility for the latter. The Court noted that if a “rather slender thread of evidence” supports the Board decision it must affirm the Board because the Board has the power to determine the ultimate facts in the case. However, the employer did not present an expert medical opinion on causation and Ward did present such evidence. The Board held that even though the employer did not present any expert evidence to refute the claimant’s expert, the Court rejected the argument that the Board was obligated to accept the Plaintiff’s expert because he was qualified as an expert witness. The Court affirmed the Board’s denial.
- Evansville Courier Co. v. Uziekalla, 2017 Ind. App. Lexis 334
Uziekalla had suffered an injury in 2008. That case was concluded on the basis of payment of permanent partial impairment and the settlement agreement provided that if Uziekalla alleged a change of condition within the time allowed by statute, the parties agreed to a specific procedure in which a medical opinion would be obtained. The first option in that settlement agreement would be that one of the original treating physicians would examine her, then if that was not possible the parties would agree to another physician and if they could not agree then the Board would select a physician. Uziekalla did timely file for a change in condition. The first physician did decline to examine her so the parties agreed to Dr. Doyle. Dr. Doyle found that she did not suffer a change in condition. Uziekalla sought another opinion from her surgeon, Dr. Weaver, who stated that a cyst that had developed to the fusion site was potentiated by the fusion itself. At hearing before the Single Hearing Member, the parties stipulated to the admission of both expert reports and stipulation #5 provided that the settlement agreement “contained a procedure for resolving future changes of condition claims.” The Single Hearing Member found that Dr. Weaver’s opinion was more credible and that Plaintiff had indeed suffered a change in condition and was entitled to additional benefits. The full Board affirmed the Single Hearing Member’s decision.
On appeal, the employer argued that the Board was not allowed to accept the stipulation and then make a finding contrary to it. The employer argued that instead of making a finding contrary to a stipulation the Board should have remanded the case to the Single Hearing Member to allow evidence of the party’s intent in creating the stipulation. The Court of Appeals, however, held that the statement “a procedure for resolving future medical change of condition claims” does not mean that it was the exclusive sole procedure. Further, the original settlement agreement stated that in case of an allegation of change in condition the parties agreed to an order of which an evaluation will be performed; the Court did not agree that the opinion obtained through this procedure would be the only opinion considered. As such, the Court affirmed the Board’s decision that Uziekalla suffered a change in condition.
The employer also argued that the Board erred by accepting Dr. Weaver’s opinion after Dr Doyle stated he was not aware of any studies providing that a cyst could be the result of a fusion surgery. Specifically, the employer challenged the admissibility of Dr Weaver’s report as being not based on reliable scientific principles. The Court held that once the employer stipulated to the admission of Dr. Weaver’s report, it could not now argue it was insufficient.