Changes in Policies and Procedures for the
Indiana Workers' Compensation Board

 

            The Indiana Worker's Compensation Board (Board) has announced a number of changes in its policies and procedures in several different areas.  Below is a brief assessment of the impact of these changes.

 

Medical Reports for 1043s and 38911s

           

            When you rely on a medical report for a Permanent Partial Impairment (PPI) agreement or to terminate Temporary Total Disability (TTD) on a Form 38911, you must attach a copy of that medical report to the document that you send to the employee and the copy that goes to the Board.  This is the procedure that we think will cause employers the most trouble.  When you are terminating TTD because the claimant is at maximum medical improvement but is not returning to work, you are expected to send out the 38911 in advance of the termination of TTD.  If you also have to wait days or weeks to get a report which actually says the claimant is at "Maximum Medical Improvement" (MMI) so you can attach it to the 38911, this will significantly push back your termination date.  We would, therefore, strongly suggest you begin working with your medical providers and nurse case managers to get an immediate handwritten notice when the claimant reaches MMI, by fax or e-mail.  Even if it is just a note on a prescription pad that lists the claimant's name, the date, the fact that he or she is at MMI and the doctor's signature, we think that should be sufficient for this requirement.  Obviously, you should at a later date obtain a more detailed report addressing why the claimant is at MMI and what, if any, PPI rating is assigned.

 

Form 38911s

 

            The employer may terminate TTD for certain enumerated reasons and the employee is not entitled to an independent medical examination.  If TTD is terminated for any other reason, the employee is entitled to seek an independent medical examination.  The enumerated reasons which preclude an independent medical examination, include:

1.      the employee's return to any employment;

2.      the employee's death;

3.      the refusal of the employee to undergo a medical examination;

4.      the employee's refusal to accept suitable employment under the restricted duty provision of the Act;

5.      the employee's receipt of 500 weeks of TTD payments; or

6.      the employee's inability or unavailability to work for reasons unrelated to the compensable injury (for example, the employee has a stroke, the employee is deported, etc.). 

           

            The Board now requires the employer (or its insurer or third party administrator [TPA]) to send out a Form 38911 in every case.  However, if the termination is not for one of the enumerated reasons -- the usual reason being that the employee has reached the point of maximum medical improvement -- the 38911 must go out before the actual termination of TTD, allowing sufficient time for the Form to reach the employee before the TTD is stopped.  The statute says that the employer must notify the employee of its "intent" to terminate TTD.

 

Thus, if you get word on November 1 that the employee has reached the point of maximum medical improvement and you send out the Form 38911 that day, you should not terminate TTD until perhaps November 5 if the employee is not returning to work.  This termination date should be entered in the "compensation payments" section of the Form 38911 in the box marked "ending date of payments."

           

            Allowing an extra five to seven days of TTD may make sense in cases where the employee has actually been off work and on TTD for a long period of time.  However, in other cases, you may want to communicate with the authorized treating physician so that the physician gives you advance notice of the date the employee is likely to reach MMI.  So, for example, if the physician tells you that she plans to release the employee at the next appointment on November 1, 2008, you may wish to send out the Form 38911 on October 25, 2008, reciting November 1, 2008 as the ending date of payments.  If the physician changes her mind on November 1 and decides that the employee is still disabled, you would, of course, need to resume TTD payments and send out another Form 38911 when the physician actually releases the employee.

 

Medical Payment Issues And Settlement Agreements

           

            In cases where a provider fee application has actually been filed, the provider must sign off on any settlement agreement between the employee and employer before this agreement will be approved by the Board.  We understand that this has been the Board's practice for some time, but perhaps they are going to enforce this a bit more strenuously.  The upshot is this -- make sure that the provider has signed off on any agreement where such an application has been filed.

 

            The Board is concerned about the resolution of medical disputes, so all settlement agreements must address the question of medical expenses.  If all statutory medical treatment has been provided and paid for by the employer, this should be spelled out in the agreement.  To incorporate this into a routine PPI settlement on a Form 1043 (Agreement to Compensation), it should be sufficient to say something to this effect:  "All statutory medical expenses have been paid by the employer [or the insurer, or the TPA, as appropriate]."  This can be done in the box on the Form 1043 where the value of the PPI is recited.

 

            If there is some question about medical bills, this should also be spelled out – for example:  "All statutory medical bills have been paid by the employer, but the attached disputed bill for an MRI ordered by the plaintiff's family physician will be resolved by the plaintiff."

 

            Additionally, the Board is requiring you to address future medical care.  In many cases, you will probably be able to say: "All statutory medical care has been paid by the employer, and it is not anticipated that the employee will require future medical care."  Another option would be – for example: "If future medical care is needed because of a change in condition, such claim will be subject to the statute regarding medical care after the adjudication of permanent impairment."

 

            We expect that this policy is going to create a number of issues and problems, and we recommend that you work closely with your attorneys.

 

Independent Medical Examinations

 

            If the employee notifies the Board that he/she disagrees with the proposed termination and wants an independent medical examination, the Board is required, by statute, to try to resolve the dispute.  The case coordinators send out a questionnaire to all claimants who request independent medical examinations, but we believe the case coordinators are also required to get in touch with the employer (or its insurer or TPA) before the independent medical examination is ordered.  We suggest you call the case coordinator to discuss the issues.  One of the things that you should plan on discussing with the case coordinator is the selection of the physician to perform the independent medical examination – both parties are entitled to have input on this and to try and agree on a physician.  The purpose of the independent medical examination is twofold.  It must address 1) whether the employee is at MMI; and 2) whether the employee can return to any sort of work.

 

            The independent medical examination process is often very informative and helpful to the employer and the employee, as well as the Board.  However, if you have issues with the independent medical examination (IME), or think that it is not required in a particular case, you should certainly discuss the problem with your attorney immediately.

 

            It is the Board's policy that the employer may not communicate with the independent medical examiner.  The Board has said on many occasions that the employer must send all medical records to the physician, but may not include any type of explanatory letter concerning the claim.  We know of no legal basis for this, and we feel that this policy is highly unfair.  Obviously, the claimant can say anything he or she wants to the examiner, and it isn't clear why the employer does not have the same privilege.  We will continue to try and explain this position to the Board and get this policy revised.  We see nothing in the statute to suggest that the employer should not be able to communicate with the independent medical examiner, just as the claimant does.

 

Penalties

 

            The Board has made it clear that it is going to crack down on delays and other employer failures to meet their statutory obligations.  This means the Board will be levying fines on employers.

 

·          Posting Work Comp Notice:  For example, there is a penalty under the provision that requires employers to post a notice indicating that they have worker's compensation coverage and how to contact the insurance carrier or TPA of the employer's worker's compensation program.  This should be posted in a conspicuous location, such as near the time clock or in the employee's lunch or break room.  You can obtain a copy of the appropriate language for the notice from the Board's Web site.  Failure to comply with this posting requirement will result in a $50 fine.

 

·          Time Limits To Accept Or Deny A Claim:  Indiana requires that the employer must either deny the claim or tender an Agreement to Compensation along with a check for all compensation that is due at that point within 30 days after disability begins.  If it is impossible to make the decision as to compensability within the 30 day period allowed, it is possible to file a Form 48557 "Notice of Inability to Determine Liability/Request for Additional Time" with the Board and obtain an automatic extension of 30 days.  At the end of that time, the employer, carrier or TPA must deny the claim or tender the Agreement along with all compensation due.

 

While it is possible to obtain additional time from the Board in extraordinary circumstances, in most cases you should be able to either accept the claim or issue a denial by that point.  If you are having problems making this decision, you should discuss the matter with your attorneys.  Failure to comply with these time limits will result in a $50 fine.

 

·          Time For Filing First Report Of Injury:  The First Report of Injury (Form 34401) must be filed when there is an injury or a claimed injury, which results in death or absence from work for more than one day.  Thus, the First Report of Injury needs to be filed if the employee claims that it is a compensable claim, even if you do not believe it.  The First Report of Injury must be sent by the employer to its worker's compensation carrier within 7 days, and must be filed with the Board electronically by the insurance carrier within 7 days of receipt of the form.  Self-insured employers must file the report with the Board within 7 days of their knowledge of the injury or claimed injury.  Failure to comply with this provision is subject to a $50 penalty.

 

            Read the Board's statement concerning these changes in its policies and procedures.  If you have any questions or comments about these changes in policies and procedures, please contact Kathleen Shortridge or Ann Stewart.

 

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.