Citations Affected: IC 22-3.
Synopsis: Average weekly wage for worker's compensation. Provides
that when an employee who has sustained a compensable injury or
occupational disease returns to work and suffers a later period of
disability due to that injury or disease after July 1, 2002, the average
weekly wage for the period of disability is determined based on the
average weekly wage at the time of the disability subject to the
maximum average weekly wage in effect as of the last day worked.
Provides for a credit for an assessment made to the second injury fund
to an employer who has made payment to an employee injured before
January 1, 2003, and who had a later period of disability entitling the
employee to an increase in the average weekly wage.
Effective: July 1, 2002.
January 8, 2002, read first time and referred to Committee on Labor and Employment.
A BILL FOR AN ACT to amend the Indiana Code concerning labor
and industrial safety.
not to exceed five hundred (500) weeks. With respect to injuries
occurring on and after July 1, 1974, and before July 1, 1976, causing
temporary total disability or total permanent disability for work, there
shall be paid to the injured employee during such total disability a
weekly compensation equal to sixty-six and two-thirds percent (66
2/3%) of his the injured employee's average weekly wages up to one
hundred and thirty-five dollars ($135.00) average weekly wages, as
defined in section 22 of this chapter, for a period not to exceed five
hundred (500) weeks. With respect to injuries occurring on and after
July 1, 1976, causing temporary total disability or total permanent
disability for work, there shall be paid to the injured employee during
the total disability a weekly compensation equal to sixty-six and
two-thirds percent (66 2/3%) of his the injured employee's average
weekly wages, as defined in IC 22-3-3-22, section 22 of this chapter,
for a period not to exceed five hundred (500) weeks. When an
employee who has sustained a compensable injury returns to work
and suffers a later period of disability due to that injury after July
1, 2002, the average weekly wage for that period of disability shall
be determined based on the average weekly wage at the time of the
disability subject to the maximum average weekly wage in effect as
of the last day worked, computed as set forth in section 22 of this
chapter. Compensation shall be allowed for the first seven (7) calendar
days only if the disability continues for longer than twenty-one (21)
days.
prospective period, the board shall send notice not later than October
1 in any year to:
(1) all insurance carriers and other entities insuring or providing
coverage to employers who are or may be liable under this article
to pay compensation for personal injuries to or the death of their
employees under this article; and
(2) each employer carrying the employer's own risk;
stating that an assessment is necessary. After June 30, 1999, the board
may conduct an assessment under this subsection not more than one (1)
time annually. Every insurance carrier and other entity insuring or
providing coverage to employers who are or may be liable under this
article to pay compensation for personal injuries to or death of their
employees under this article and every employer carrying the
employer's own risk, shall, within thirty (30) days of the board sending
notice under this subsection, pay to the worker's compensation board
for the benefit of the fund an assessed amount that may not exceed two
and one-half percent (2.5%) of the total amount of all worker's
compensation paid to injured employees or their beneficiaries under
IC 22-3-2
through
IC 22-3-6
for the calendar year next preceding the
due date of such payment. For the purposes of calculating the
assessment under this subsection, the board may consider payments for
temporary total disability, temporary partial disability, permanent total
impairment, permanent partial impairment, or death of an employee.
The board may not consider payments for medical benefits in
calculating an assessment under this subsection. If the amount to the
credit of the second injury fund on or before October 1 of any year
exceeds one million dollars ($1,000,000), the assessment allowed
under this subsection shall not be assessed or collected during the
ensuing year. But when on or before October 1 of any year the amount
to the credit of the fund is less than one million dollars ($1,000,000),
the payments of not more than two and one-half percent (2.5%) of the
total amount of all worker's compensation paid to injured employees or
their beneficiaries under
IC 22-3-2
through
IC 22-3-6
for the calendar
year next preceding that date shall be resumed and paid into the fund.
The board may not use an assessment rate greater than twenty-five
hundredths of one percent (0.25%) above the amount recommended by
the study performed before the assessment. All entities liable for and
paying an assessment under this subsection are entitled to a credit
against the assessment for the payments made the same year on
which the assessment was based. These payments must have been
made to an employee who was injured before January 1, 2003, and
who had a later period of disability entitling the employee to an
increase in the average weekly wage, as set forth in section 8 of this
chapter. Any credit due shall be computed by the following
formula:
STEP ONE: Determine the amount of compensation the
employee actually received based on the average weekly wage
as of the last day worked before the later period of disability.
STEP TWO: Determine the amount of compensation the
employee would have received based on the average weekly
wage at the time of the original compensable injury.
STEP THREE: Determine the greater of zero (0) or the result
of:
(A) the STEP ONE amount; minus
(B) the STEP TWO amount.
(d) The board shall enter into a contract with an actuary or another
qualified firm that has experience in calculating worker's compensation
liabilities. Not later than September 1 of each year, the actuary or other
qualified firm shall calculate the recommended funding level of the
fund based on the previous year's claims and inform the board of the
results of the calculation. If the amount to the credit of the fund is less
than the amount required under subsection (c), the board may conduct
an assessment under subsection (c). The board shall pay the costs of the
contract under this subsection with money in the fund.
(e) An assessment collected under subsection (c) on an employer
who is not self-insured must be assessed through a surcharge based on
the employer's premium. An assessment collected under subsection (c)
does not constitute an element of loss, but for the purpose of collection
shall be treated as a separate cost imposed upon insured employers. A
premium surcharge under this subsection must be collected at the same
time and in the same manner in which the premium for coverage is
collected, and must be shown as a separate amount on a premium
statement. A premium surcharge under this subsection must be
excluded from the definition of premium for all purposes, including the
computation of agent commissions or premium taxes. However, an
insurer may cancel a worker's compensation policy for nonpayment of
the premium surcharge. A cancellation under this subsection must be
carried out under the statutes applicable to the nonpayment of
premiums.
(f) The sums shall be paid by the board to the treasurer of state, to
be deposited in a special account known as the second injury fund. The
funds are not a part of the general fund of the state. Any balance
remaining in the account at the end of any fiscal year shall not revert
to the general fund. The funds shall be used only for the payment of
awards of compensation and expense of medical examinations or
treatment made and ordered by the board and chargeable against the
fund pursuant to this section, and shall be paid for that purpose by the
treasurer of state upon award or order of the board.
(g) If an employee who is entitled to compensation under
IC 22-3-2
through
IC 22-3-6
either:
(1) exhausts the maximum benefits under section 22 of this
chapter without having received the full amount of award granted
to the employee under section 10 of this chapter; or
(2) exhausts the employee's benefits under section 10 of this
chapter;
then such employee may apply to the board, who may award the
employee compensation from the second injury fund established by this
section, as follows under subsection (h).
(h) An employee who has exhausted the employee's maximum
benefits under section 10 of this chapter may be awarded additional
compensation equal to sixty-six and two-thirds percent (66 2/3%) of the
employee's average weekly wage at the time of the employee's injury,
not to exceed the maximum then applicable under section 22 of this
chapter, for a period of not to exceed one hundred fifty (150) weeks
upon competent evidence sufficient to establish:
(1) that the employee is totally and permanently disabled from
causes and conditions of which there are or have been objective
conditions and symptoms proven that are not within the physical
or mental control of the employee; and
(2) that the employee is unable to support the employee in any
gainful employment, not associated with rehabilitative or
vocational therapy.
(i) The additional award may be renewed during the employee's total
and permanent disability after appropriate hearings by the board for
successive periods not to exceed one hundred fifty (150) weeks each.
The provisions of this section apply only to injuries occurring
subsequent to April 1, 1950, for which awards have been or are in the
future made by the board under section 10 of this chapter. Section 16
of this chapter does not apply to compensation awarded from the
second injury fund under this section.
(j) All insurance carriers subject to an assessment under this section
are required to provide to the board:
(1) not later than January 31 each calendar year; and
(2) not later than thirty (30) days after a change occurs;
the name, address, and electronic mail address of a representative
authorized to receive the notice of an assessment.
brought within the coverage of the insurance contract are
employees of the corporation under
IC 22-3-2
through
IC 22-3-6.
(3) Any reference to an employee who has been injured, when the
employee is dead, also includes the employee's legal
representatives, dependents, and other persons to whom
compensation may be payable.
(4) An owner of a sole proprietorship may elect to include the
owner as an employee under
IC 22-3-2
through
IC 22-3-6
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
IC 22-3-2
through
IC 22-3-6
until 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
IC 22-3-2-14.5.
(5) A partner in a partnership may elect to include the partner as
an employee under
IC 22-3-2
through
IC 22-3-6
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
IC 22-3-2
through
IC 22-3-6
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
IC 22-3-2-14.5.
(6) Real estate professionals are not employees under
IC 22-3-2
through
IC 22-3-6
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.
(7) A person is an independent contractor in the construction
trades and not an employee under
IC 22-3-2
through
IC 22-3-6
if
the person is an independent contractor under the guidelines of
the United States Internal Revenue Service.
(8) 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 1057, to a motor
carrier is not an employee of the motor carrier for purposes of
IC 22-3-2
through
IC 22-3-6.
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.
(9) A member or manager in a limited liability company may elect
to include the member or manager as an employee under
IC 22-3-2
through
IC 22-3-6
if the member or manager is actually
engaged in the limited liability company business. If a member or
manager makes this election, the member or manager must serve
upon the member's or manager's insurance carrier and upon the
board written notice of the election. A member or manager may
not be considered an employee under
IC 22-3-2
through
IC 22-3-6
until the notice has been received.
(10) 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 in
IC 22-3-2-2.5.
(c) "Minor" means an individual who has not reached seventeen
(17) years of age.
(1) Unless otherwise provided in this subsection, a minor
employee shall be considered as being of full age for all purposes
of
IC 22-3-2
through
IC 22-3-6.
(2) If the employee is a minor who, at the time of the accident, is
employed, required, suffered, or permitted to work in violation of
IC 20-8.1-4-25
, the amount of compensation and death benefits,
as provided in
IC 22-3-2
through
IC 22-3-6
, 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
injury or death of the minor, and the employer shall be 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 accident is employed, suffered, or permitted to
work at any occupation which is not prohibited by law, this
subdivision does not apply.
(3) A minor employee who, at the time of the accident, is a
student performing services for an employer as part of an
approved program under
IC 20-10.1-6-7
shall be considered a
full-time employee for the purpose of computing compensation
for permanent impairment under
IC 22-3-3-10.
The average
weekly wages for such a student shall be calculated as provided
in subsection (d)(4).
(4) The rights and remedies granted in this subsection to a minor
under
IC 22-3-2
through
IC 22-3-6
on account of personal injury
or death by accident shall exclude all rights and remedies of the
minor, the minor's parents, or the minor's personal
representatives, dependents, or next of kin at common law,
statutory or otherwise, on account of the injury or death. This
subsection does not apply to minors who have reached seventeen
(17) years of age.
(d) "Average weekly wages" means the earnings of the injured
employee in the employment in which the employee was working at the
time of the injury during the period of fifty-two (52) weeks
immediately preceding the date of injury, divided by fifty-two (52),
except as follows:
(1) If the injured employee lost seven (7) or more calendar days
during this period, although not in the same week, then the
earnings for the remainder of the fifty-two (52) weeks shall be
divided by the number of weeks and parts thereof remaining after
the time lost has been deducted.
(2) Where the employment prior to the injury extended over a
period of less than fifty-two (52) weeks, the method of dividing
the earnings during that period by the number of weeks and parts
thereof during which the employee earned wages shall be
followed, if results just and fair to both parties will be obtained.
Where by reason of the shortness of the time during which the
employee has been in the employment of the employee's employer
or of the casual nature or terms of the employment it is
impracticable to compute the average weekly wages, as defined
in this subsection, regard shall be had to the average weekly
amount which during the fifty-two (52) weeks previous to the
injury was being earned by a person in the same grade employed
at the same work by the same employer or, if there is no person so
employed, by a person in the same grade employed in the same
class of employment in the same district.
(3) Wherever allowances of any character made to an employee
in lieu of wages are a specified part of the wage contract, they
shall be deemed a part of his earnings.
temporary partial disability, and total permanent disability, with respect
to occupational diseases occurring on and after July 1, 1992, and before
July 1, 1993, the average weekly wages are considered to be:
(1) not more than five hundred forty dollars ($540); and
(2) not less than seventy-five dollars ($75).
(i) In computing compensation for temporary total disability,
temporary partial disability, and total permanent disability, with respect
to occupational diseases occurring on and after July 1, 1993, and before
July 1, 1994, the average weekly wages are considered to be:
(1) not more than five hundred ninety-one dollars ($591); and
(2) not less than seventy-five dollars ($75).
(j) In computing compensation for temporary total disability,
temporary partial disability, and total permanent disability, with respect
to occupational diseases occurring on and after July 1, 1994, and before
July 1, 1997, the average weekly wages are considered to be:
(1) not more than six hundred forty-two dollars ($642); and
(2) not less than seventy-five dollars ($75).
(k) In computing compensation for temporary total disability,
temporary partial disability, and total permanent disability, the average
weekly wages are considered to be:
(1) with respect to occupational diseases occurring on and after
July 1, 1997, and before July 1, 1998:
(A) not more than six hundred seventy-two dollars ($672); and
(B) not less than seventy-five dollars ($75);
(2) with respect to occupational diseases occurring on and after
July 1, 1998, and before July 1, 1999:
(A) not more than seven hundred two dollars ($702); and
(B) not less than seventy-five dollars ($75);
(3) with respect to occupational diseases occurring on and after
July 1, 1999, and before July 1, 2000:
(A) not more than seven hundred thirty-two dollars ($732);
and
(B) not less than seventy-five dollars ($75);
(4) with respect to occupational diseases occurring on and after
July 1, 2000, and before July 1, 2001:
(A) not more than seven hundred sixty-two dollars ($762); and
(B) not less than seventy-five dollars ($75);
(5) with respect to disablements occurring on and after July 1,
2001, and before July 1, 2002:
(A) not more than eight hundred twenty-two dollars ($822);
and
(B) not less than seventy-five dollars ($75); and
1, 2000, and before July 1, 2001, two hundred fifty-four thousand
dollars ($254,000).
(5) With respect to disability or death occurring on and after July
1, 2001, and before July 1, 2002, two hundred seventy-four
thousand dollars ($274,000).
(6) With respect to disability or death occurring on and after July
1, 2002, two hundred ninety-four thousand dollars ($294,000).
(u) For all disabilities occurring before July 1, 1985, "average
weekly wages" shall mean the earnings of the injured employee in the
employment in which the employee was working at the time of the last
exposure during the period of fifty-two (52) weeks immediately
preceding the last day of the last exposure divided by fifty-two (52). If
the employee lost seven (7) or more calendar days during the period,
although not in the same week, then the earnings for the remainder of
the fifty-two (52) weeks shall be divided by the number of weeks and
parts thereof remaining after the time lost has been deducted. Where
the employment prior to the last day of the last exposure extended over
a period of less than fifty-two (52) weeks, the method of dividing the
earnings during that period by the number of weeks and parts thereof
during which the employee earned wages shall be followed if results
just and fair to both parties will be obtained. Where by reason of the
shortness of the time during which the employee has been in the
employment of the employer or of the casual nature or terms of the
employment it is impracticable to compute the average weekly wages
as above defined, regard shall be had to the average weekly amount
which, during the fifty-two (52) weeks previous to the last day of the
last exposure, was being earned by a person in the same grade
employed at the same work by the same employer, or if there is no
person so employed, by a person in the same grade employed in that
same class of employment in the same district. Whenever allowances
of any character are made to an employee in lieu of wages or a
specified part of the wage contract, they shall be deemed a part of the
employee's earnings.
(v) For all disabilities occurring on and after July 1, 1985, "average
weekly wages" means the earnings of the injured employee during the
period of fifty-two (52) weeks immediately preceding the disability
divided by fifty-two (52). If the employee lost seven (7) or more
calendar days during the period, although not in the same week, then
the earnings for the remainder of the fifty-two (52) weeks shall be
divided by the number of weeks and parts of weeks remaining after the
time lost has been deducted. If employment before the date of disability
extended over a period of less than fifty-two (52) weeks, the method of
dividing the earnings during that period by the number of weeks and
parts of weeks during which the employee earned wages shall be
followed if results just and fair to both parties will be obtained. If by
reason of the shortness of the time during which the employee has been
in the employment of the employer or of the casual nature or terms of
the employment it is impracticable to compute the average weekly
wages for the employee, the employee's average weekly wages shall be
considered to be the average weekly amount that, during the fifty-two
(52) weeks before the date of disability, was being earned by a person
in the same grade employed at the same work by the same employer or,
if there is no person so employed, by a person in the same grade
employed in that same class of employment in the same district.
Whenever allowances of any character are made to an employee
instead of wages or a specified part of the wage contract, they shall be
considered a part of the employee's earnings.
(w) In computing the average weekly wage for an employee who
has sustained a compensable occupational disease who has
returned to work and has a later period of disability due to that
occupational disease after July 1, 2002, the average weekly wage
for that period of disability shall be determined based on the
average weekly wage at the time of that disability subject to the
maximum average weekly wage in effect as of the last day worked,
computed as set forth in this section.
(x) The provisions of this article may not be construed to result in
an award of benefits in which the number of weeks paid or to be paid
for temporary total disability, temporary partial disability, or permanent
total disability benefits combined exceeds five hundred (500) weeks.
This section shall not be construed to prevent a person from applying
for an award under
IC 22-3-3-13.
However, in case of permanent total
disability resulting from a disablement occurring on or after January 1,
1998, the minimum total benefit shall not be less than seventy-five
thousand dollars ($75,000).