Comp Clues


Improving the State Form 38911

Date: 10/01/2008

Behold the Report of Claim Status/Request for Independent Medical Examination, State Form 38911.  Depending upon who you talk to and when you talk with them, this is either the best government form ever conceived or the worst.  The form is an efficient claims administration tool; however, it is often confusing to those who use it and especially to injured workers who receive it.

In recent years there has been some discussion of creating a separate state form for the independent medical examination (IME) process.  Such action may eventually be appropriate.  In the interim, however, confusion about the IME process and use of the form in general may be alleviated by printing instructions on the reverse side of the form.

The State Form 38911 was developed after the 1991 changes to the Worker’s Compensation Act.  These changes included creation of claims determination timeframes and the IME process thereby creating additional procedural mechanism for the worker’s compensation administrative agency.  Rather than create a new form for each procedure, a previous state form entitled Memorandum of Compensation Payments (commonly referred to as Form 6) was revamped and expanded.  This particular form was chosen for redesign because it was primarily used to report the totals of compensation payments made, specifically temporary total disability (TTD) benefits.

Other than possibly reporting TTD benefit termination prematurely, it is seldom, if ever, a mistake to use the State Form 38911.  It is a multi-purpose document and, as with all forms used within the Indiana worker’s compensation system, intended to report claims activity to the Board and appropriate parties.

The State Form 38911 is divided into five sections, all of which may be used by claims administrators.  The last two sections are of particular importance to injured workers.

Section 1:  Claim identification information should always be listed in the first section of the form.  This is the basic information that the Board staff will use to match the State Form 38911 with all other claim filings.

Section 2:  The second section is used to identify the claim action that is being effectuated by service of the form.  Under the provisions of Indiana Code §22-3-3-7 a claims determination must be made within 29 days of the employer’s knowledge of the injury.  Accordingly, if a claim is being denied, the box marked “Claim deemed not compensable” should be checked in this section of the form in order to meet the statutory requirement.

The second section of the form is also used to notify injured employees of TTD benefit termination, which initiates the IME process. Under the provisions of Indiana Code §22-3-3-7, the employer/carrier/administrator must give notice of TTD benefit termination.  The boxes labeled “Returned to work” and “Benefit termination” are used to report benefits termination. Although there is some controversy as to the distinctions between those two terms, the action most applicable to the case should be indicated.

In the second section of the form it is also possible to report a benefit suspension for refusal to accept medical treatment, services or supplies under Indiana Code §22-3-3-4, to report a refusal to accept light duty employment under Indiana Code §22-3-3-11, and to report refusal to allow an autopsy under Indiana Code §22-3-3-6.  There is also the box marked “other” allowing for reporting of other claim actions that are not otherwise provided for on the form.

Section 3:  Indiana Code §22-3-3-7 also requires the reporting of compensation payments made; which was the original purpose of the old Form 6.  Accordingly, the third section of the form provides for reporting of compensation payments and may be used at any time during the pendancy of the claim to report payments made for any period of time.  It is particularly important to report this information for calculation of the statute of limitations and to support a TTD benefit termination that may result in an IME request.

Section 4:  The fourth section of the form allows for timely request of an IME appointment under the provisions of Indiana Code §22-3-3-7.   It is this section of the form that most often causes confusion because claimants will often request an IME appointment although such appointment is only feasible in a TTD benefit termination situation.  This is probably the most important use of the form.  Recent caselaw has emphasized the necessity of serving the State Form 38911 in advance of a benefit termination.

Section 5:  The last section of the form certifies service of the form by the employer representative, reports the action being taken, and provides for verification of a timely IME appointment request.

Questions about the proper use and service of the form will always arise and this article isn’t intended to address all questions about the IME process.  After nearly 17 years of use, perhaps printed instructions to the insurance/claims administration industry are unnecessary.  However, brief, clear instructions to injured workers, printed on the reverse side of the form or in Section 4, may obviate the cost and time needed for creation and implementation of another state form.