HB1307 was passed by the House and signed by the Governor as a comprehensive update of the Indiana Workers Compensation Act in 2006. Several important changes were made to the Act in this Bill.
MILLEDGE Language has been added to I.C. 22-2-2-2 which establishes that plaintiff bears the burden of proof and the burden cannot be shifted to the employer. That language reads as follows: “The burden of proof is on the employee. The proof by the employee of an element of a claim does not create a presumption in favor of the employee with regard to another element of the claim.
It is hoped this will address the consequences of the decision of the Supreme Court of Indiana in Milledge v. the Oaks which created a situation where the burden shifted to the employer to prove the employee’s injuries were the result of a idiopathic cause (unexplained or pre-existing condition peculiar to the injured worker) where the injury occurred while the employee was engaged in activities that were deemed to be a neutral risk not specific to their job duties (Milledge was walking across the company parking lot at the time of her injury).
STATUTE OF LIMITATIONS
The statute of limitations for filing an application for adjustment of claim for change of condition has been changed. The provisions of I.C. 22-3-3-37 have been modified so that an application for adjustment of claim for change of condition must be filed within two years of the last date for which compensation was paid the injured worker. This new language simplifies the statute of limitations for these claims.
OCCUPATIONAL DISEASE ACT
Similar changes were made to provisions of the Occupational Disease Act.
SECOND INJURY FUND ASSESSMENT
Changes were made to the method of calculation of the assessment to carriers and self insured employers for the contribution to the second injury fund.
Several new board members have been appointed to replace current board members. Diane Emswiller has been appointed to replace Terry Coriden, responsible for the Marion County docket. Krysten Lester has been appointed to replace William Howell, responsible for the South Eastern docket. The effective dates of these appointments is not known to the author.
The maximum Average Weekly Wage rate and consequently the Temporary Total Disability Compensation rates have been increased. These changes become effective with injuries on or after July 1, 2006. The new rates are:
|EFFECTIVE DATE||MAX. AWW RATE||MAX. TTD RATE|
The maximum total compensation that may be paid on a claim has also increased effective July 1, 2006.
|EFFECTIVE DATE||MAX. TOTAL COMPENSATION|
The compensation rates for Permanent Partial Impairment have been increased as well. These rates are effective July 1, 2007:
FOR INJURIES AFTER JULY 1, 1997 THAT RESULT IN AMPUTATIONS DOLLAR VALUES PER DEGREE ARE DOUBLED. THIS DOUBLING DOES NOT APPLY TO LOSS OF USE THAT IS NOT A LOSS BY SEPARATION.
A new section has been added to the act codifying attorneys fees for those attorneys representing injured workers. Those attorneys fees shall be:
1. a minimum of $200.00;
2. twenty percent (20%) of the first fifty thousand dollars ($50,000.00) recovered;
3. fifteen percent (15%) of the any and all recovery in excess of fifty thousand dollars ($50,000.00);
4. ten percent (10%) of the value of unpaid, out of pocket and future medical expenses.
Nation Schoening Moll, P.C.
721 East Broadway
Fortville IN 46040