CHAPTER 7. WORKER'S OCCUPATIONAL DISEASES COMPENSATION
IC 22-3-7
Chapter 7. Worker's Occupational Diseases Compensation
IC 22-3-7-1
Repealed
(Repealed by P.L.28-1988, SEC.118.)
IC 22-3-7-2
Applicability; burden of proof; police and firefighter coverage
Sec. 2. (a) Every employer and every employee, except as stated
in this chapter, shall comply with this chapter, requiring the
employer and employee to pay and accept compensation for
disablement or death by occupational disease arising out of and in
the course of the employment, and shall be bound thereby. 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.
(b) This chapter does not apply to the following:
(1) A person who enters into an independent contractor
agreement with a nonprofit corporation that is recognized as tax
exempt under Section 501(c)(3) of the Internal Revenue Code
(as defined in IC 6-3-1-11(a)) to perform youth coaching
services on a part-time basis.
(2) A nonprofit corporation that is recognized as tax exempt
under Section 501(c)(3) of the Internal Revenue Code (as
defined in IC 6-3-1-11(a)) to the extent the corporation enters
into an independent contractor agreement with a person for the
performance of youth coaching services on a part-time basis.
(c) This chapter does not apply to employees of municipal
corporations in Indiana who are members of:
(1) the fire department or police department of any such
municipality; and
(2) a firefighters' pension fund or a police officers' pension
fund.
However, if the common council elects to purchase and procure
worker's occupational disease insurance to insure said employees
with respect to medical benefits under this chapter, the medical
provisions apply to members of the fire department or police
department of any such municipal corporation who are also members
of a firefighters' pension fund or a police officers' pension fund.
(d) When any municipal corporation purchases or procures
worker's occupational disease insurance covering members of the fire
department or police department who are also members of a
firefighters' pension fund or a police officers' pension fund and pays
the premium or premiums for the insurance, the payment of the
premiums is a legal and allowable expenditure of funds of any
municipal corporation.
(e) Except as provided in subsection (f), where the common
council has procured worker's occupational disease insurance as
provided under this section, any member of the fire department or
police department employed in the city carrying the worker's
occupational disease insurance under this section is limited to
recovery of medical and surgical care, medicines, laboratory,
curative and palliative agents and means, x-ray, diagnostic and
therapeutic services to the extent that the services are provided for in
the worker's occupational disease policy so procured by the city, and
may not also recover in addition to that policy for the same benefits
provided in IC 36-8-4.
(f) If the medical benefits provided under a worker's occupational
disease policy procured by the common council terminate for any
reason before the police officer or firefighter is fully recovered, the
common council shall provide medical benefits that are necessary
until the police officer or firefighter is no longer in need of medical
care.
(g) Nothing in this section affects the rights and liabilities of
employees and employers had by them prior to April 1, 1963, under
this chapter.
(Formerly: Acts 1937, c.69, s.2; Acts 1963, c.388, s.1; Acts 1974,
P.L.109, SEC.1.) As amended by Acts 1981, P.L.11, SEC.126;
P.L.28-1988, SEC.49; P.L.217-1989, SEC.2; P.L.201-2005, SEC.6;
P.L.134-2006, SEC.8.
IC 22-3-7-2.5
School to work student
Sec. 2.5. (a) As used in this section, "school to work student"
refers to a student participating in on-the-job training under the
federal School to Work Opportunities Act (20 U.S.C. 6101 et seq.).
(b) A school to work student is entitled to the following
compensation and benefits under this chapter:
(1) Medical benefits.
(2) Permanent partial impairment compensation under section
16 of this chapter. Permanent partial impairment compensation
for a school to work student shall be paid in a lump sum upon
agreement or final award.
(3) In the case that death results from the injury:
(A) death benefits in a lump sum amount of one hundred
seventy-five thousand dollars ($175,000), payable upon
agreement or final award to any dependents of the student
under sections 11 through 14 of this chapter, or, if the
student has no dependents, to the student's parents; and
(B) burial compensation under section 15 of this chapter.
(c) For the sole purpose of modifying an award under section 27
of this chapter, a school to work student's average weekly wage is
presumed to be equal to the federal minimum wage.
(d) A school to work student is not entitled to the following
compensation under this chapter:
(1) Temporary total disability compensation under section 16 of
this chapter.
(2) Temporary partial disability compensation under section 19
of this chapter.
(e) Except for remedies available under IC 5-2-6.1, recovery
under subsection (b) is the exclusive right and remedy for:
(1) a school to work student; and
(2) the personal representatives, dependents, or next of kin, at
common law or otherwise, of a school to work student;
on account of disablement or death by occupational disease arising
out of and in the course of school to work employment.
As added by P.L.235-1999, SEC.6.
IC 22-3-7-3
Waiver of exemption from act by employer; notice of acceptance;
filing
Sec. 3. (a) An employer who is exempt under this section from the
operation of the compensation provisions of this chapter may at any
time waive such exemption and thereby accept the provisions of this
chapter by giving notice as provided in subsection (b).
(b) The notice of acceptance referred to in subsection (a) shall be
given thirty (30) days prior to any accident resulting in injury or
death, provided that if any such injury occurred less than thirty (30)
days after the date of employment, notice of acceptance given at the
time of employment shall be sufficient notice thereof. The notice
shall be in writing or print in a substantial form prescribed by the
worker's compensation board and shall be given by the employer by
posting the same in a conspicuous place in the plant, shop, office,
room, or place where the employee is employed, or by serving it
personally upon the employee. The notice shall be given by the
employee by sending the same in registered letter addressed to the
employer at his last known residence or place of business, or by
giving it personally to the employer, or any of his agents upon whom
a summons in civil actions may be served under the laws of the state.
(c) A copy of the notice in prescribed form shall also be filed with
the worker's compensation board, within five (5) days after its
service in such manner upon the employee or employer.
(Formerly: Acts 1937, c.69, s.3; Acts 1963, c.388, s.2; Acts 1974,
P.L.109, SEC.2.) As amended by P.L.28-1988, SEC.50.
IC 22-3-7-4
Repealed
(Repealed by Acts 1974, P.L.109, SEC.8.)
IC 22-3-7-5
Coal mining; application of law
Sec. 5. On and after April 1, 1963, the provisions of this chapter
shall apply to the state, to all political divisions thereof, to all
municipal corporations within the state, to persons, partnerships,
limited liability companies, and corporations engaged in mining coal,
and to employees thereof, without any right of exemption from the
compensation provisions of this chapter, except as provided in
section 34(i) of this chapter.
(Formerly: Acts 1937, c.69, s.4b; Acts 1963, c.388, s.5.) As amended
by P.L.144-1986, SEC.57; P.L.8-1993, SEC.283.
IC 22-3-7-6
Exclusive remedies
Sec. 6. The rights and remedies granted under this chapter to an
employee subject to this chapter on account of disablement or death
by occupational disease arising out of and in the course of the
employment shall exclude all other rights and remedies of such
employee, his personal representatives, dependents, or next of kin,
at common law or otherwise, on account of such disablement or
death.
(Formerly: Acts 1937, c.69, s.4c; Acts 1963, c.388, s.6.) As amended
by P.L.144-1986, SEC.58.
IC 22-3-7-7
Statutory duties; application of law
Sec. 7. Nothing in this chapter shall be construed to relieve any
employer or employee from penalty for failure or neglect to perform
any statutory duty.
(Formerly: Acts 1937, c.69, s.4d; Acts 1963, c.388, s.7.) As amended
by P.L.144-1986, SEC.59.
IC 22-3-7-8
Place of exposure; foreign states or foreign countries
Sec. 8. Every employer and employee under this chapter shall be
bound by the provisions of this chapter whether exposure and
disablement therefrom or death resulting from an occupational
disease occurs within the state or in some other state or in a foreign
country.
(Formerly: Acts 1937, c.69, s.4e; Acts 1963, c.388, s.8.) As amended
by P.L.144-1986, SEC.60.
IC 22-3-7-9
Definitions; applicability of chapter; exemptions
Sec. 9. (a) As used in this chapter, "employer" includes the state
and any political subdivision, any municipal corporation within the
state, any individual or the legal representative of a deceased
individual, firm, association, limited liability company, or
corporation or the receiver or trustee of the same, using the services
of another for pay. A parent corporation and its subsidiaries shall
each be considered joint employers of the corporation's, the parent's,
or the subsidiaries' employees for purposes of sections 6 and 33 of
this chapter. Both a lessor and a lessee of employees shall each be
considered joint employers of the employees provided by the lessor
to the lessee for purposes of sections 6 and 33 of this chapter. The
term also includes an employer that provides on-the-job training
under the federal School to Work Opportunities Act (20 U.S.C. 6101
et seq.) to the extent set forth under section 2.5 of this chapter. If the
employer is insured, the term includes the employer's insurer so far
as applicable. However, the inclusion of an employer's insurer within
this definition does not allow an employer's insurer to avoid payment
for services rendered to an employee with the approval of the
employer. The term does not include a nonprofit corporation that is
recognized as tax exempt under Section 501(c)(3) of the Internal
Revenue Code (as defined in IC 6-3-1-11(a)) to the extent the
corporation enters into an independent contractor agreement with a
person for the performance of youth coaching services on a part-time
basis.
(b) As used in this chapter, "employee" means every person,
including a minor, in the service of another, under any contract of
hire or apprenticeship written or implied, except one whose
employment is both casual and not in the usual course of the trade,
business, occupation, or profession of the employer. For purposes of
this chapter the following apply:
(1) Any reference to an employee who has suffered
disablement, when the employee is dead, also includes the
employee's legal representative, dependents, and other persons
to whom compensation may be payable.
(2) An owner of a sole proprietorship may elect to include the
owner as an employee under this chapter if the owner is actually
engaged in the proprietorship business. If the owner makes this
election, the owner must serve upon the owner's insurance
carrier and upon the board written notice of the election. No
owner of a sole proprietorship may be considered an employee
under this chapter unless the notice has been received. If the
owner of a sole proprietorship is an independent contractor in
the construction trades and does not make the election provided
under this subdivision, the owner must obtain an affidavit of
exemption under section 34.5 of this chapter.
(3) A partner in a partnership may elect to include the partner
as an employee under this chapter if the partner is actually
engaged in the partnership business. If a partner makes this
election, the partner must serve upon the partner's insurance
carrier and upon the board written notice of the election. No
partner may be considered an employee under this chapter until
the notice has been received. If a partner in a partnership is an
independent contractor in the construction trades and does not
make the election provided under this subdivision, the partner
must obtain an affidavit of exemption under section 34.5 of this
chapter.
(4) Real estate professionals are not employees under this
chapter if:
(A) they are licensed real estate agents;
(B) substantially all their remuneration is directly related to
sales volume and not the number of hours worked; and
(C) they have written agreements with real estate brokers
stating that they are not to be treated as employees for tax
purposes.
(5) A person is an independent contractor in the construction
trades and not an employee under this chapter if the person is an
independent contractor under the guidelines of the United States
Internal Revenue Service.
(6) An owner-operator that provides a motor vehicle and the
services of a driver under a written contract that is subject to
IC 8-2.1-24-23, 45 IAC 16-1-13, or 49 CFR 376, to a motor
carrier is not an employee of the motor carrier for purposes of
this chapter. The owner-operator may elect to be covered and
have the owner-operator's drivers covered under a worker's
compensation insurance policy or authorized self-insurance that
insures the motor carrier if the owner-operator pays the
premiums as requested by the motor carrier. An election by an
owner-operator under this subdivision does not terminate the
independent contractor status of the owner-operator for any
purpose other than the purpose of this subdivision.
(7) An unpaid participant under the federal School to Work
Opportunities Act (20 U.S.C. 6101 et seq.) is an employee to
the extent set forth under section 2.5 of this chapter.
(8) A person who enters into an independent contractor
agreement with a nonprofit corporation that is recognized as tax
exempt under Section 501(c)(3) of the Internal Revenue Code
(as defined in IC 6-3-1-11(a)) to perform youth coaching
services on a part-time basis is not an employee for purposes of
this chapter.
(9) An officer of a corporation who is the sole officer of the
corporation is an employee of the corporation under this
chapter. An officer of a corporation who is the sole officer of
the corporation may elect not to be an employee of the
corporation under this chapter. If an officer makes this election,
the officer must serve written notice of the election on the
corporation's insurance carrier and the board. An officer of a
corporation who is the sole officer of the corporation may not
be considered to be excluded as an employee under this chapter
until the notice is received by the insurance carrier and the
board.
(c) As used in this chapter, "minor" means an individual who has
not reached seventeen (17) years of age. A minor employee shall be
considered as being of full age for all purposes of this chapter.
However, if the employee is a minor who, at the time of the last
exposure, is employed, required, suffered, or permitted to work in
violation of the child labor laws of this state, the amount of
compensation and death benefits, as provided in this chapter, shall be
double the amount which would otherwise be recoverable. The
insurance carrier shall be liable on its policy for one-half (1/2) of the
compensation or benefits that may be payable on account of the
disability or death of the minor, and the employer shall be wholly
liable for the other one-half (1/2) of the compensation or benefits. If
the employee is a minor who is not less than sixteen (16) years of age
and who has not reached seventeen (17) years of age, and who at the
time of the last exposure is employed, suffered, or permitted to work
at any occupation which is not prohibited by law, the provisions of
this subsection prescribing double the amount otherwise recoverable
do not apply. The rights and remedies granted to a minor under this
chapter on account of disease shall exclude all rights and remedies
of the minor, the minor's parents, the minor's personal
representatives, dependents, or next of kin at common law, statutory
or otherwise, on account of any disease.
(d) This chapter does not apply to casual laborers as defined in
subsection (b), nor to farm or agricultural employees, nor to
household employees, nor to railroad employees engaged in train
service as engineers, firemen, conductors, brakemen, flagmen,
baggagemen, or foremen in charge of yard engines and helpers
assigned thereto, nor to their employers with respect to these
employees. Also, this chapter does not apply to employees or their
employers with respect to employments in which the laws of the
United States provide for compensation or liability for injury to the
health, disability, or death by reason of diseases suffered by these
employees.
(e) As used in this chapter, "disablement" means the event of
becoming disabled from earning full wages at the work in which the
employee was engaged when last exposed to the hazards of the
occupational disease by the employer from whom the employee
claims compensation or equal wages in other suitable employment,
and "disability" means the state of being so incapacitated.
(f) For the purposes of this chapter, no compensation shall be
payable for or on account of any occupational diseases unless
disablement, as defined in subsection (e), occurs within two (2) years
after the last day of the last exposure to the hazards of the disease
except for the following:
(1) In all cases of occupational diseases caused by the
inhalation of silica dust or coal dust, no compensation shall be
payable unless disablement, as defined in subsection (e), occurs
within three (3) years after the last day of the last exposure to
the hazards of the disease.
(2) In all cases of occupational disease caused by the exposure
to radiation, no compensation shall be payable unless
disablement, as defined in subsection (e), occurs within two (2)
years from the date on which the employee had knowledge of
the nature of the employee's occupational disease or, by
exercise of reasonable diligence, should have known of the
existence of such disease and its causal relationship to the
employee's employment.
(3) In all cases of occupational diseases caused by the
inhalation of asbestos dust, no compensation shall be payable
unless disablement, as defined in subsection (e), occurs within
three (3) years after the last day of the last exposure to the
hazards of the disease if the last day of the last exposure was
before July 1, 1985.
(4) In all cases of occupational disease caused by the inhalation
of asbestos dust in which the last date of the last exposure
occurs on or after July 1, 1985, and before July 1, 1988, no
compensation shall be payable unless disablement, as defined
in subsection (e), occurs within twenty (20) years after the last
day of the last exposure.
(5) In all cases of occupational disease caused by the inhalation
of asbestos dust in which the last date of the last exposure
occurs on or after July 1, 1988, no compensation shall be
payable unless disablement (as defined in subsection (e)) occurs
within thirty-five (35) years after the last day of the last
exposure.
(g) For the purposes of this chapter, no compensation shall be
payable for or on account of death resulting from any occupational
disease unless death occurs within two (2) years after the date of
disablement. However, this subsection does not bar compensation for
death:
(1) where death occurs during the pendency of a claim filed by
an employee within two (2) years after the date of disablement
and which claim has not resulted in a decision or has resulted in
a decision which is in process of review or appeal; or
(2) where, by agreement filed or decision rendered, a
compensable period of disability has been fixed and death
occurs within two (2) years after the end of such fixed period,
but in no event later than three hundred (300) weeks after the
date of disablement.
(h) As used in this chapter, "billing review service" refers to a
person or an entity that reviews a medical service provider's bills or
statements for the purpose of determining pecuniary liability. The
term includes an employer's worker's compensation insurance carrier
if the insurance carrier performs such a review.
(i) As used in this chapter, "billing review standard" means the
data used by a billing review service to determine pecuniary liability.
(j) As used in this chapter, "community" means a geographic
service area based on ZIP code districts defined by the United States
Postal Service according to the following groupings:
(1) The geographic service area served by ZIP codes with the
first three (3) digits 463 and 464.
(2) The geographic service area served by ZIP codes with the
first three (3) digits 465 and 466.
(3) The geographic service area served by ZIP codes with the
first three (3) digits 467 and 468.
(4) The geographic service area served by ZIP codes with the
first three (3) digits 469 and 479.
(5) The geographic service area served by ZIP codes with the
first three (3) digits 460, 461 (except 46107), and 473.
(6) The geographic service area served by the 46107 ZIP code
and ZIP codes with the first three (3) digits 462.
(7) The geographic service area served by ZIP codes with the
first three (3) digits 470, 471, 472, 474, and 478.
(8) The geographic service area served by ZIP codes with the
first three (3) digits 475, 476, and 477.
(k) As used in this chapter, "medical service provider" refers to a
person or an entity that provides medical services, treatment, or
supplies to an employee under this chapter.
(l) As used in this chapter, "pecuniary liability" means the
responsibility of an employer or the employer's insurance carrier for
the payment of the charges for each specific service or product for
human medical treatment provided under this chapter in a defined
community, equal to or less than the charges made by medical
service providers at the eightieth percentile in the same community
for like services or products.
(Formerly: Acts 1937, c.69, s.5; Acts 1955, c.131, s.1; Acts 1955,
c.195, s.1; Acts 1961, c.240, s.1; Acts 1963, c.48, s.16; Acts 1969,
c.101, s.1; Acts 1974, P.L.109, SEC.3.) As amended by Acts 1979,
P.L.228, SEC.2; P.L.224-1985, SEC.1; P.L.95-1988, SEC.12;
P.L.75-1993, SEC.5; P.L.8-1993, SEC.284; P.L.1-1994, SEC.111;
P.L.110-1995, SEC.34; P.L.216-1995, SEC.5; P.L.2-1996, SEC.266;
P.L.258-1997(ss), SEC.13; P.L.235-1999, SEC.7; P.L.31-2000,
SEC.7; P.L.202-2001, SEC.8; P.L.201-2005, SEC.7; P.L.1-2009,
SEC.127; P.L.180-2009, SEC.2.
IC 22-3-7-9.2
"Violation of the child labor laws of this state"
Sec. 9.2. As used in section 9(c) of this chapter, the term
"violation of the child labor laws of this state" means a violation of
IC 20-33-3-35. The term does not include a violation of any other
provision of IC 20-33-3.
As added by P.L.37-1985, SEC.32. Amended by P.L.106-1992,
SEC.12; P.L.1-2005, SEC.183.
IC 22-3-7-10
Definitions; course of employment
Sec. 10. (a) As used in this chapter, "occupational disease" means
a disease arising out of and in the course of the employment.
Ordinary diseases of life to which the general public is exposed
outside of the employment shall not be compensable, except where
such diseases follow as an incident of an occupational disease as
defined in this section.
(b) A disease arises out of the employment only if there is
apparent to the rational mind, upon consideration of all of the
circumstances, a direct causal connection between the conditions
under which the work is performed and the occupational disease, and
which can be seen to have followed as a natural incident of the work
as a result of the exposure occasioned by the nature of the
employment, and which can be fairly traced to the employment as the
proximate cause, and which does not come from a hazard to which
workers would have been equally exposed outside of the
employment. The disease must be incidental to the character of the
business and not independent of the relation of employer and
employee. The disease need not have been foreseen or expected but
after its contraction it must appear to have had its origin in a risk
connected with the employment and to have flowed from that source
as a rational consequence.
(Formerly: Acts 1937, c.69, s.6.) As amended by P.L.144-1986,
SEC.61; P.L.28-1988, SEC.51.
IC 22-3-7-10.5
Average weekly wages of public employee; determination
Sec. 10.5. For purposes of this chapter, the average weekly wages
of a public employee shall be determined without regard to any
salary reduction agreement under Section 125 of the Internal
Revenue Code.
As added by P.L.5-1992, SEC.9.
IC 22-3-7-11
Death benefits; payment
Sec. 11. On and after April 1, 1957, and prior to April 1, 1967,
when death results from an occupational disease within four hundred
(400) weeks, there shall be paid to total dependents of said deceased,
as determined by the provisions of IC 22-3-7-12, IC 22-3-7-13,
IC 22-3-7-14, IC 22-3-7-15, a weekly compensation amounting to
sixty (60) per centum of the deceased's average weekly wage until
the compensation so paid when added to any compensation paid to
the deceased employee shall equal four hundred (400) weeks, and to
partial dependents as hereinafter provided.
On and after April 1, 1967, and prior to April 1, 1969, when death
results from an occupational disease within four hundred fifty (450)
weeks, there shall be paid to total dependents of said deceased, as
determined by the provisions of IC 22-3-7-12, IC 22-3-7-13,
IC 22-3-7-14, IC 22-3-7-15, a weekly compensation amounting to
sixty (60) per centum of the deceased's average weekly wage, until
the compensation so paid when added to any compensation paid to
the deceased employee shall equal four hundred fifty (450) weeks,
and to partial dependents as hereinafter provided.
On and after April 1, 1969, and prior to July 1, 1974, when death
results from occupational disease within five hundred (500) weeks,
there shall be paid to total dependents of said deceased, as
determined by the provisions of IC 22-3-7-12, IC 22-3-7-13,
IC 22-3-7-14, IC 22-3-7-15, a weekly compensation amounting to
sixty (60) per centum of the deceased's average weekly wage, until
the compensation so paid when added to any compensation paid to
the deceased employee shall equal five hundred (500) weeks, and to
partial dependents as hereinafter provided.
On and after July 1, 1974, and before July 1, 1976, when death
results from occupational disease within five hundred (500) weeks,
there shall be paid to total dependents of said deceased as determined
by the provisions of IC 22-3-7-12, IC 22-3-7-13, IC 22-3-7-14,
IC 22-3-7-15, a weekly compensation amounting to sixty-six and
two-thirds (66 2/3) per centum of the deceased's average weekly
wage, up to one hundred thirty-five dollars ($135.00) average weekly
wages, until the compensation so paid when added to any
compensation paid to the deceased employee shall equal five
hundred (500) weeks, and to partial dependents as hereinafter
provided.
On and after July 1, 1976, when death results from occupational
disease within five hundred (500) weeks, there shall be paid to total
dependents of the deceased, as determined by the provisions of
IC 22-3-7-12 through IC 22-3-7-15, a weekly compensation
amounting to sixty-six and two-thirds percent (66 2/3%) of the
deceased's average weekly wage, as defined in IC 22-3-7-19, until the
compensation paid, when added to compensation paid to the
deceased employee, equals five hundred (500) weeks, and to partial
dependents as provided in this chapter.
(Formerly: Acts 1937, c.69, s.7; Acts 1943, c.115, s.1; Acts 1945,
c.290, s.1; Acts 1947, c.164, s.1; Acts 1949, c.242, s.3; Acts 1951,
c.250, s.3; Acts 1957, c.353, s.1; Acts 1967, c.313, s.1; Acts 1969,
c.101, s.2; Acts 1974, P.L.109, SEC.4.) As amended by Acts 1976,
P.L.112, SEC.4.
IC 22-3-7-12
Dependents; classification
Sec. 12. (a) Dependents under this chapter shall consist of the
following three (3) classes:
(1) Presumptive dependents.
(2) Total dependents in fact.
(3) Partial dependents in fact.
(b) Presumptive dependents shall be entitled to compensation to
the complete exclusion of total dependents in fact and partial
dependents in fact and shall be entitled to such compensation in
equal shares.
(c) Total dependents in fact shall be entitled to compensation to
the complete exclusion of partial dependents in fact and shall be
entitled to such compensation, if more than one (1) such dependent
exists, in equal shares. The question of total dependency shall be
determined as of the time of death.
(d) Partial dependents in fact shall not be entitled to any
compensation if any other class of dependents exist. The weekly
compensation to persons partially dependent in fact shall be in the
same proportion to the weekly compensation of persons wholly
dependent as the average amount contributed weekly by the deceased
to such partial dependent in fact bears to his average weekly wages
at the time of the disablement. The question of partial dependency in
fact shall be determined as of the time of the disablement.
(Formerly: Acts 1937, c.69, s.7a; Acts 1947, c.164, s.2.) As amended
by P.L.144-1986, SEC.62.
IC 22-3-7-13
Presumptive dependents; termination of dependency
Sec. 13. (a) The following persons are conclusively presumed to
be wholly dependent for support upon a deceased employee and shall
constitute the class known as presumptive dependents in section 12
of this chapter:
(1) A wife upon a husband with whom she is living at the time
of his death, or upon whom the laws of the state impose the
obligation of her support at such time. The term "wife", as used
in this subdivision, shall exclude a common law wife unless
such common law relationship was entered into before January
1, 1958, and, in addition, existed openly and notoriously for a
period of not less than five (5) years immediately preceding the
death.
(2) A husband upon his wife with whom he is living at the time
of her death. The term "husband", as used in this subdivision,
shall exclude a common law husband unless such common law
relationship was entered into before January 1, 1958, and, in
addition existed openly and notoriously for a period of not less
than five (5) years immediately preceding the death.
(3) An unmarried child under the age of twenty-one (21) years
upon the parent with whom the child is living at the time of the
death of such parent.
(4) An unmarried child under twenty-one (21) years upon the
parent with whom the child may not be living at the time of the
death of such parent, but upon whom at such time, the laws of
the state impose the obligation to support such child.
(5) A child over the age of twenty-one (21) years who has never
been married and who is either physically or mentally
incapacitated from earning the child's own support, upon a
parent upon whom the laws of the state impose the obligation
of the support of such unmarried child.
(6) A child over the age of twenty-one (21) years who has never
been married and who at the time of the death of the parent is
keeping house for and living with such parent and is not
otherwise gainfully employed.
(b) As used in this section, the term "child" includes stepchildren,
legally adopted children, posthumous children, and acknowledged
children born out of wedlock. The term "parent" includes stepparents
and parents by adoption.
(c) The dependency of a child under subsections (a)(3) and (a)(4)
shall terminate when the child attains the age of twenty-one (21).
(d) The dependency of any person as a presumptive dependent
shall terminate upon the marriage of such dependent subsequent to
the death of the employee, and such dependency shall not be
reinstated by divorce. However, for deaths from injuries occurring on
and after July 1, 1977, a surviving spouse who is a presumptive
dependent and who is the only surviving dependent of the deceased
is entitled to receive, upon remarriage before the expiration of the
maximum statutory compensation period, a lump sum settlement
equal to the smaller of one hundred four (104) weeks of
compensation or the compensation for the remainder of the
maximum statutory period.
(e) The dependency of any child under subsection (a)(6) shall be
terminated at such time as such dependent becomes gainfully
employed or marries.
(Formerly: Acts 1937, c.69, s.7b; Acts 1947, c.164, s.3; Acts 1963,
c.388, s.9.) As amended by Acts 1977, P.L.261, SEC.4;
P.L.152-1987, SEC.7; P.L.134-1990, SEC.2.
IC 22-3-7-14
Dependents; total or partial dependents; relatives; termination of
dependency
Sec. 14. Total or partial dependents in fact shall include only
those persons related to the deceased employee by blood or by
marriage, except an unmarried child under eighteen (18) years of age.
Any such person who is actually totally or partially dependent upon
the deceased employee is entitled to compensation as such dependent
in fact. The right to compensation of any person totally or partially
dependent in fact shall be terminated by the marriage of such
dependent subsequent to the death of the employee and such
dependency shall not be reinstated by divorce.
(Formerly: Acts 1937, c.69, s.7c; Acts 1947, c.164, s.4.)
IC 22-3-7-15
Death benefits; burial expenses
Sec. 15. In cases of the death of an employee from an
occupational disease arising out of and in the course of the
employee's employment under circumstances that the employee
would have been entitled to compensation if death had not resulted,
the employer shall pay the burial expenses of such employee, not
exceeding seven thousand five hundred dollars ($7,500).
(Formerly: Acts 1937, c.69, s.7d; Acts 1947, c.164, s.5; Acts 1955,
c.241, s.1; Acts 1963, c.388, s.10; Acts 1967, c.313, s.2; Acts 1971,
P.L.354, SEC.1.) As amended by P.L.225-1983, SEC.3; P.L.95-1988,
SEC.13; P.L.170-1991, SEC.18; P.L.201-2005, SEC.8.
IC 22-3-7-16
Disablements; awards
Sec. 16. (a) Compensation shall be allowed on account of
disablement from occupational disease resulting in only temporary
total disability to work or temporary partial disability to work
beginning with the eighth day of such disability except for the
medical benefits provided for in section 17 of this chapter.
Compensation shall be allowed for the first seven (7) calendar days
only as provided in this section. The first weekly installment of
compensation for temporary disability is due fourteen (14) days after
the disability begins. Not later than fifteen (15) days from the date
that the first installment of compensation is due, the employer or the
employer's insurance carrier shall tender to the employee or to the
employee's dependents, with all compensation due, a properly
prepared compensation agreement in a form prescribed by the board.
Whenever an employer or the employer's insurance carrier denies or
is not able to determine liability to pay compensation or benefits, the
employer or the employer's insurance carrier shall notify the worker's
compensation board and the employee in writing on a form
prescribed by the worker's compensation board not later than thirty
(30) days after the employer's knowledge of the claimed disablement.
If a determination of liability cannot be made within thirty (30) days,
the worker's compensation board may approve an additional thirty
(30) days upon a written request of the employer or the employer's
insurance carrier that sets forth the reasons that the determination
could not be made within thirty (30) days and states the facts or
circumstances that are necessary to determine liability within the
additional thirty (30) days. More than thirty (30) days of additional
time may be approved by the worker's compensation board upon the
filing of a petition by the employer or the employer's insurance
carrier that sets forth:
(1) the extraordinary circumstances that have precluded a
determination of liability within the initial sixty (60) days;
(2) the status of the investigation on the date the petition is
filed;
(3) the facts or circumstances that are necessary to make a
determination; and
(4) a timetable for the completion of the remaining
investigation.
An employer who fails to comply with this section is subject to a
civil penalty of fifty dollars ($50), to be assessed and collected by the
board upon notice and hearing. Civil penalties collected under this
section shall be deposited in the state general fund.
(b) Once begun, temporary total disability benefits may not be
terminated by the employer unless:
(1) the employee has returned to work;
(2) the employee has died;
(3) the employee has refused to undergo a medical examination
under section 20 of this chapter;
(4) the employee has received five hundred (500) weeks of
temporary total disability benefits or has been paid the
maximum compensation allowable under section 19 of this
chapter; or
(5) the employee is unable or unavailable to work for reasons
unrelated to the compensable disease.
In all other cases the employer must notify the employee in writing
of the employer's intent to terminate the payment of temporary total
disability benefits, and of the availability of employment, if any, on
a form approved by the board. If the employee disagrees with the
proposed termination, the employee must give written notice of
disagreement to the board and the employer within seven (7) days
after receipt of the notice of intent to terminate benefits. If the board
and employer do not receive a notice of disagreement under this
section, the employee's temporary total disability benefits shall be
terminated. Upon receipt of the notice of disagreement, the board
shall immediately contact the parties, which may be by telephone or
other means and attempt to resolve the disagreement. If the board is
unable to resolve the disagreement within ten (10) days of receipt of
the notice of disagreement, the board shall immediately arrange for
an evaluation of the employee by an independent medical examiner.
The independent medical examiner shall be selected by mutual
agreement of the parties or, if the parties are unable to agree,
appointed by the board under IC 22-3-4-11. If the independent
medical examiner determines that the employee is no longer
temporarily disabled or is still temporarily disabled but can return to
employment that the employer has made available to the employee,
or if the employee fails or refuses to appear for examination by the
independent medical examiner, temporary total disability benefits
may be terminated. If either party disagrees with the opinion of the
independent medical examiner, the party shall apply to the board for
a hearing under section 27 of this chapter.
(c) An employer is not required to continue the payment of
temporary total disability benefits for more than fourteen (14) days
after the employer's proposed termination date unless the
independent medical examiner determines that the employee is
temporarily disabled and unable to return to any employment that the
employer has made available to the employee.
(d) If it is determined that as a result of this section temporary
total disability benefits were overpaid, the overpayment shall be
deducted from any benefits due the employee under this section and,
if there are no benefits due the employee or the benefits due the
employee do not equal the amount of the overpayment, the employee
shall be responsible for paying any overpayment which cannot be
deducted from benefits due the employee.
(e) For disablements occurring on and after July 1, 1976, from
occupational disease resulting in temporary total disability for any
work there shall be paid to the disabled employee during the
temporary total disability weekly compensation equal to sixty-six and
two-thirds percent (66 2/3%) of the employee's average weekly
wages, as defined in section 19 of this chapter, for a period not to
exceed five hundred (500) weeks. Compensation shall be allowed for
the first seven (7) calendar days only if the disability continues for
longer than twenty-one (21) days.
(f) For disablements occurring on and after July 1, 1974, from
occupational disease resulting in temporary partial disability for
work there shall be paid to the disabled employee during such
disability a weekly compensation equal to sixty-six and two-thirds
percent (66 2/3%) of the difference between the employee's average
weekly wages, as defined in section 19 of this chapter, and the
weekly wages at which the employee is actually employed after the
disablement, for a period not to exceed three hundred (300) weeks.
Compensation shall be allowed for the first seven (7) calendar days
only if the disability continues for longer than twenty-one (21) days.
In case of partial disability after the period of temporary total
disability, the latter period shall be included as a part of the
maximum period allowed for partial disability.
(g) For disabilities occurring on and after July 1, 1979, and before
July 1, 1988, from occupational disease in the schedule set forth in
subsection (j), the employee shall receive in addition to disability
benefits, not exceeding fifty-two (52) weeks on account of the
occupational disease, a weekly compensation of sixty percent (60%)
of the employee's average weekly wages, not to exceed one hundred
twenty-five dollars ($125) average weekly wages, for the period
stated for the disabilities.
(h) For disabilities occurring on and after July 1, 1988, and before
July 1, 1989, from occupational disease in the schedule set forth in
subsection (j), the employee shall receive in addition to disability
benefits, not exceeding seventy-eight (78) weeks on account of the
occupational disease, a weekly compensation of sixty percent (60%)
of the employee's average weekly wages, not to exceed one hundred
sixty-six dollars ($166) average weekly wages, for the period stated
for the disabilities.
(i) For disabilities occurring on and after July 1, 1989, and before
July 1, 1990, from occupational disease in the schedule set forth in
subsection (j), the employee shall receive in addition to disability
benefits, not exceeding seventy-eight (78) weeks on account of the
occupational disease, a weekly compensation of sixty percent (60%)
of the employee's average weekly wages, not to exceed one hundred
eighty-three dollars ($183) average weekly wages, for the period
stated for the disabilities.
(j) For disabilities occurring on and after July 1, 1990, and before
July 1, 1991, from occupational disease in the following schedule,
the employee shall receive in addition to disability benefits, not
exceeding seventy-eight (78) weeks on account of the occupational
disease, a weekly compensation of sixty percent (60%) of the
employee's average weekly wages, not to exceed two hundred dollars
($200) average weekly wages, for the period stated for the
disabilities.
(1) Amputations: For the loss by separation, of the thumb, sixty
(60) weeks; of the index finger, forty (40) weeks; of the second
finger, thirty-five (35) weeks; of the third or ring finger, thirty
(30) weeks; of the fourth or little finger, twenty (20) weeks; of
the hand by separation below the elbow, two hundred (200)
weeks; of the arm above the elbow joint, two hundred fifty
(250) weeks; of the big toe, sixty (60) weeks; of the second toe,
thirty (30) weeks; of the third toe, twenty (20) weeks; of the
fourth toe, fifteen (15) weeks; of the fifth or little toe, ten (10)
weeks; of the foot below the knee joint, one hundred fifty (150)
weeks; and of the leg above the knee joint, two hundred (200)
weeks. The loss of more than one (1) phalange of a thumb or
toe shall be considered as the loss of the entire thumb or toe.
The loss of more than two (2) phalanges of a finger shall be
considered as the loss of the entire finger. The loss of not more
than one (1) phalange of a thumb or toe shall be considered as
the loss of one-half (1/2) of the thumb or toe and compensation
shall be paid for one-half (1/2) of the period for the loss of the
entire thumb or toe. The loss of not more than two (2)
phalanges of a finger shall be considered as the loss of one-half
(1/2) the finger and compensation shall be paid for one-half
(1/2) of the period for the loss of the entire finger.
(2) Loss of Use: The total permanent loss of the use of an arm,
hand, thumb, finger, leg, foot, toe, or phalange shall be
considered as the equivalent of the loss by separation of the
arm, hand, thumb, finger, leg, foot, toe, or phalange and the
compensation shall be paid for the same period as for the loss
thereof by separation.
(3) Partial Loss of Use: For the permanent partial loss of the use
of an arm, hand, thumb, finger, leg, foot, toe, or phalange,
compensation shall be paid for the proportionate loss of the use
of such arm, hand, thumb, finger, leg, foot, toe, or phalange.
(4) For disablements for occupational disease resulting in total
permanent disability, five hundred (500) weeks.
(5) For the loss of both hands, or both feet, or the total sight of
both eyes, or any two (2) of such losses resulting from the same
disablement by occupational disease, five hundred (500) weeks.
(6) For the permanent and complete loss of vision by
enucleation of an eye or its reduction to one-tenth (1/10) of
normal vision with glasses, one hundred fifty (150) weeks, and
for any other permanent reduction of the sight of an eye,
compensation shall be paid for a period proportionate to the
degree of such permanent reduction without correction or
glasses. However, when such permanent reduction without
correction or glasses would result in one hundred percent
(100%) loss of vision, but correction or glasses would result in
restoration of vision, then compensation shall be paid for fifty
percent (50%) of such total loss of vision without glasses plus
an additional amount equal to the proportionate amount of such
reduction with glasses, not to exceed an additional fifty percent
(50%).
(7) For the permanent and complete loss of hearing, two
hundred (200) weeks.
(8) In all other cases of permanent partial impairment,
compensation proportionate to the degree of such permanent
partial impairment, in the discretion of the worker's
compensation board, not exceeding five hundred (500) weeks.
(9) In all cases of permanent disfigurement, which may impair
the future usefulness or opportunities of the employee,
compensation in the discretion of the worker's compensation
board, not exceeding two hundred (200) weeks, except that no
compensation shall be payable under this paragraph where
compensation shall be payable under subdivisions (1) through
(8). Where compensation for temporary total disability has been
paid, this amount of compensation shall be deducted from any
compensation due for permanent disfigurement.
(k) With respect to disablements in the following schedule
occurring on and after July 1, 1991, the employee shall receive in
addition to temporary total disability benefits, not exceeding one
hundred twenty-five (125) weeks on account of the disablement,
compensation in an amount determined under the following schedule
to be paid weekly at a rate of sixty-six and two-thirds percent (66
2/3%) of the employee's average weekly wages during the fifty-two
(52) weeks immediately preceding the week in which the
disablement occurred:
(1) Amputation: For the loss by separation of the thumb, twelve
(12) degrees of permanent impairment; of the index finger,
eight (8) degrees of permanent impairment; of the second
finger, seven (7) degrees of permanent impairment; of the third
or ring finger, six (6) degrees of permanent impairment; of the
fourth or little finger, four (4) degrees of permanent
impairment; of the hand by separation below the elbow joint,
forty (40) degrees of permanent impairment; of the arm above
the elbow, fifty (50) degrees of permanent impairment; of the
big toe, twelve (12) degrees of permanent impairment; of the
second toe, six (6) degrees of permanent impairment; of the
third toe, four (4) degrees of permanent impairment; of the
fourth toe, three (3) degrees of permanent impairment; of the
fifth or little toe, two (2) degrees of permanent impairment; of
separation of the foot below the knee joint, thirty-five (35)
degrees of permanent impairment; and of the leg above the knee
joint, forty-five (45) degrees of permanent impairment.
(2) Amputations occurring on or after July 1, 1997: For the loss
by separation of any of the body parts described in subdivision
(1) on or after July 1, 1997, the dollar values per degree
applying on the date of the injury as described in subsection (l)
shall be multiplied by two (2). However, the doubling provision
of this subdivision does not apply to a loss of use that is not a
loss by separation.
(3) The loss of more than one (1) phalange of a thumb or toe
shall be considered as the loss of the entire thumb or toe. The
loss of more than two (2) phalanges of a finger shall be
considered as the loss of the entire finger. The loss of not more
than one (1) phalange of a thumb or toe shall be considered as
the loss of one-half (1/2) of the degrees of permanent
impairment for the loss of the entire thumb or toe. The loss of
not more than one (1) phalange of a finger shall be considered
as the loss of one-third (1/3) of the finger and compensation
shall be paid for one-third (1/3) of the degrees payable for the
loss of the entire finger. The loss of more than one (1) phalange
of the finger but not more than two (2) phalanges of the finger
shall be considered as the loss of one-half (1/2) of the finger
and compensation shall be paid for one-half (1/2) of the degrees
payable for the loss of the entire finger.
(4) For the loss by separation of both hands or both feet or the
total sight of both eyes or any two (2) such losses in the same
accident, one hundred (100) degrees of permanent impairment.
(5) For the permanent and complete loss of vision by
enucleation or its reduction to one-tenth (1/10) of normal vision
with glasses, thirty-five (35) degrees of permanent impairment.
(6) For the permanent and complete loss of hearing in one (1)
ear, fifteen (15) degrees of permanent impairment, and in both
ears, forty (40) degrees of permanent impairment.
(7) For the loss of one (1) testicle, ten (10) degrees of
permanent impairment; for the loss of both testicles, thirty (30)
degrees of permanent impairment.
(8) Loss of use: The total permanent loss of the use of an arm,
a hand, a thumb, a finger, a leg, a foot, a toe, or a phalange shall
be considered as the equivalent of the loss by separation of the
arm, hand, thumb, finger, leg, foot, toe, or phalange, and
compensation shall be paid in the same amount as for the loss
by separation. However, the doubling provision of subdivision
(2) does not apply to a loss of use that is not a loss by
separation.
(9) Partial loss of use: For the permanent partial loss of the use
of an arm, a hand, a thumb, a finger, a leg, a foot, a toe, or a
phalange, compensation shall be paid for the proportionate loss
of the use of the arm, hand, thumb, finger, leg, foot, toe, or
phalange.
(10) For disablements resulting in total permanent disability, the
amount payable for impairment or five hundred (500) weeks of
compensation, whichever is greater.
(11) For any permanent reduction of the sight of an eye less
than a total loss as specified in subdivision (5), the
compensation shall be paid in an amount proportionate to the
degree of a permanent reduction without correction or glasses.
However, when a permanent reduction without correction or
glasses would result in one hundred percent (100%) loss of
vision, then compensation shall be paid for fifty percent (50%)
of the total loss of vision without glasses, plus an additional
amount equal to the proportionate amount of the reduction with
glasses, not to exceed an additional fifty percent (50%).
(12) For any permanent reduction of the hearing of one (1) or
both ears, less than the total loss as specified in subdivision (6),
compensation shall be paid in an amount proportionate to the
degree of a permanent reduction.
(13) In all other cases of permanent partial impairment,
compensation proportionate to the degree of a permanent partial
impairment, in the discretion of the worker's compensation
board, not exceeding one hundred (100) degrees of permanent
impairment.
(14) In all cases of permanent disfigurement which may impair
the future usefulness or opportunities of the employee,
compensation, in the discretion of the worker's compensation
board, not exceeding forty (40) degrees of permanent
impairment except that no compensation shall be payable under
this subdivision where compensation is payable elsewhere in
this section.
(l) With respect to disablements occurring on and after July 1,
1991, compensation for permanent partial impairment shall be paid
according to the degree of permanent impairment for the disablement
determined under subsection (k) and the following:
(1) With respect to disablements occurring on and after July 1,
1991, and before July 1, 1992, for each degree of permanent
impairment from one (1) to thirty-five (35), five hundred dollars
($500) per degree; for each degree of permanent impairment
from thirty-six (36) to fifty (50), nine hundred dollars ($900)
per degree; for each degree of permanent impairment above
fifty (50), one thousand five hundred dollars ($1,500) per
degree.
(2) With respect to disablements occurring on and after July 1,
1992, and before July 1, 1993, for each degree of permanent
impairment from one (1) to twenty (20), five hundred dollars
($500) per degree; for each degree of permanent impairment
from twenty-one (21) to thirty-five (35), eight hundred dollars
($800) per degree; for each degree of permanent impairment
from thirty-six (36) to fifty (50), one thousand three hundred
dollars ($1,300) per degree; for each degree of permanent
impairment above fifty (50), one thousand seven hundred
dollars ($1,700) per degree.
(3) With respect to disablements occurring on and after July 1,
1993, and before July 1, 1997, for each degree of permanent
impairment from one (1) to ten (10), five hundred dollars
($500) per degree; for each degree of permanent impairment
from eleven (11) to twenty (20), seven hundred dollars ($700)
per degree; for each degree of permanent impairment from
twenty-one (21) to thirty-five (35), one thousand dollars
($1,000) per degree; for each degree of permanent impairment
from thirty-six (36) to fifty (50), one thousand four hundred
dollars ($1,400) per degree; for each degree of permanent
impairment above fifty (50), one thousand seven hundred
dollars ($1,700) per degree.
(4) With respect to disablements occurring on and after July 1,
1997, and before July 1, 1998, for each degree of permanent
impairment from one (1) to ten (10), seven hundred fifty dollars
($750) per degree; for each degree of permanent impairment
from eleven (11) to thirty-five (35), one thousand dollars
($1,000) per degree; for each degree of permanent impairment
from thirty-six (36) to fifty (50), one thousand four hundred
dollars ($1,400) per degree; for each degree of permanent
impairment above fifty (50), one thousand seven hundred
dollars ($1,700) per degree.
(5) With respect to disablements occurring on and after July 1,
1998, and before July 1, 1999, for each degree of permanent
impairment from one (1) to ten (10), seven hundred fifty dollars
($750) per degree; for each degree of permanent impairment
from eleven (11) to thirty-five (35), one thousand dollars
($1,000) per degree; for each degree of permanent impairment
from thirty-six (36) to fifty (50), one thousand four hundred
dollars ($1,400) per degree; for each degree of permanent
impairment above fifty (50), one thousand seven hundred
dollars ($1,700) per degree.
(6) With respect to disablements occurring on and after July 1,
1999, and before July 1, 2000, for each degree of permanent
impairment from one (1) to ten (10), nine hundred dollars
($900) per degree; for each degree of permanent impairment
from eleven (11) to thirty-five (35), one thousand one hundred
dollars ($1,100) per degree; for each degree of permanent
impairment from thirty-six (36) to fifty (50), one thousand six
hundred dollars ($1,600) per degree; for each degree of
permanent impairment above fifty (50), two thousand dollars
($2,000) per degree.
(7) With respect to disablements occurring on and after July 1,
2000, and before July 1, 2001, for each degree of permanent
impairment from one (1) to ten (10), one thousand one hundred
dollars ($1,100) per degree; for each degree of permanent
impairment from eleven (11) to thirty-five (35), one thousand
three hundred dollars ($1,300) per degree; for each degree of
permanent impairment from thirty-six (36) to fifty (50), two
thousand dollars ($2,000) per degree; for each degree of
permanent impairment above fifty (50), two thousand five
hundred fifty dollars ($2,500) per degree.
(8) With respect to disablements occurring on and after