The Worker’s Compensation Board of Indiana (the Board) transitioned its claim administration system from paper filing to an electronic filing several years ago. Since then, most of the claim administration is done through electronic data interchange (EDI) and the Board has been updating its paper forms to reflect this new filing system. One of the most widely-used forms, Form 38911, has been revised with useful changes that may result in more accurate notices to injured workers and reflect employment circumstances employers are experiencing.

Self-insured employers or insurers use Form 38911 to provide written notice to an injured worker that it intends to terminate temporary total disability (TTD) or that the employer has available employment. In 2020, the Legislature revised the Act to include an electronic filing requirement along with the notice requirement. Based on the EDI option selected, the system generates Form 38911 for the employer to send to the injured worker. An employer or insurer should choose all the options that apply.

The middle portion of Form 38911 contains the statutory reasons for terminating temporary total disability. There are several useful changes to this area of the form:

• Form 38911 now includes the EDI codes (S1 through S8) for each termination reason. This should make the filing process easier and result in more accurate notices being generated.
• The first choice for terminating compensation has historically been “The injured worker has returned to any employment” which is the first basis for terminating TTD enumerated in the Act. Form 38911 now includes “OR has been released by the treating physician to return to work” as part of the S1 choice for terminating compensation. Note, there is no requirement for a maximum medical improvement determination, only that a physician released an injured worker to return to work. Arguably, this opinion can include a release to return to work with restrictions. Therefore, if an authorized physician recommends an employee return to work with restrictions and the employee declines an offer of work within those restrictions, statutory compensation can be terminated. The employer should select S1 and provide notice to the employee that it intends to terminate temporary total disability based on the employee’s refusal to accept modified duty work. The employer should also document all communications in which the employer communicated the offered work. 
• The next two options of the form for terminating temporary total disability are contained in a single statutory provision. Form 38911 has divided these options for EDI purposes. S2 reflects the injured worker has refused to undergo a medical examination. S3 reflects the injured worker has refused to accept suitable employment. As discussed, S1 can also be used for such a refusal. In some instances, it may be more appropriate to suspend compensation or benefits (using a different form or EDI option), which would allow reinstatement after some action by the injured worker. Using Form 38911 will terminate compensation rather than suspend compensation or benefits.
• Finally, Form 38911 includes a new option not contained in the statute. S8 reflects TTD termination because the injured worker “has changed jurisdiction to a state other than Indiana.” Filing a claim in another or multiple states may not eliminate an Indiana employer’s potential liability. One should evaluate the circumstances of the accident to determine whether Indiana has jurisdiction over the claim.

There is a section below the Benefit Termination section on Form 38911 in which an injured worker can object to the proposed compensation termination and/or request a Board-ordered independent medical examination (IME). The Board now requires this notice be provided electronically using the Dispute Termination of Benefits link on the Board’s website, if possible. Unfortunately, the options on Form 38911 appear to suggest that a Board-ordered IME is appropriate regardless of the reason for terminating TTD or the timing of the request. The language on Form 38911 does not make a distinction between the two provisions of the Act that allow an employee to obtain an IME – one is an automatic right if timely requested, the other requires a judge’s order in response to a party’s application. One should review an IME request carefully to determine whether an injured worker is entitled to an IME under the Act or if the request requires a judge ruling.

If you have questions about the Board’s electronic filing system, circumstances related to terminating statutory compensation, or other questions related to Indiana worker’s compensation claim administration, contact Ann Stewart.

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