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Indiana Raises Worker’s Compensation Rates for Benefits

Indiana Raises Worker’s Compensation Rates for Benefits

Finally, after years of remaining at the same level, the Indiana Worker’s Compensation Board and State of Indiana increased the financial recovery rates an injured worker can claim for their casewww.in.gov/wcb/files/PPIandTTD-benefits2023_1.3_.pdf  For injuries that occur on or after July 1, 2023, an injured worker may recover more money for their PPI and TTD benefits.  The schedule used by the state increases annually over the next four years.  Understanding these rate tables can be complicated.  Since every dollar for your work injury case is precious, you should contact Goodin Abernathy for legal help.      

Worker’s Compensation Laws

Employees hurt on the job in Indiana are protected by Indiana’s Worker’s Compensation laws.  Attorney Jim Browne and Goodin Abernathy regularly help our Hispanic clients navigate the legal process to protect their rights and fight for more benefits.  This article highlights main points of the Indiana Worker’s Compensation process. 

Each state uses different laws for their worker’s compensation (“work comp”) claims.  In Indiana, a work injury is considered a civil law claim.  It does not involve criminal or immigration law issues.  Something a little different about work comp claims is an agency handles the legal process – not a court of law.  The Indiana Worker’s Compensation Board is the agency that tracks and handles these cases.  You can learn more about the Board at this website https://www.in.gov/wcb/

An important part about Indiana’s work comp law is that an employer cannot defend a case based on liability or fault.  Unlike an auto accident or other typical type of injury claim, it does not matter whether an employee was negligent and did something to cause the accident.  As long as the employee was not intoxicated or intended to hurt themself, Indiana requires the employer to offer benefits.

Unfortunately, we often hear that employers threaten immigration reporting or similar problems when their employees are injured.  You should not be afraid of immigration issues.   Indiana’s work comp law allows any worker to make a claim.  Your immigration status does not affect your legal rights and does not involve notifying the U.S. Immigration Customs and Enforcement (“ICE”) agency.  Hispanic workers should not be concerned about immigration problems and notify their employer or supervisor immediately if injured on the job.  Make sure to report your injury right away because waiting to do so may allow the employer to dispute responsibility.

Preliminarily, a couple legal issues we see affecting work comp claims involve whether the worker was an employee and whether the employer has insurance coverage.  Determining whether an injured worker is an employee or independent contractor can be a complicated legal question.  Since Indiana law does not require employers to offer independent contractors work comp benefits, let’s review some basic differences between employees and independent contractors. 

Signs That Show A Worker Is An Employee

  1. The worker is paid with a company check
  2. Taxes are taken out of their pay checks
  3. Worker does not work at other jobs
  4. Worker does not have her/his own business
  5. Worker uses the employer’s equipment
  6. Worker regularly visits the employer’s place of business
  7. Works the hours and schedule the employer chooses

An Independent Contractor Is Usually Identified When These Circumstances Apply

  1. The worker has her / his own company
  2. They work for various other companies
  3. They do not work for the employer full time
  4. They receive a 1099 tax form from the employer
  5. They do not have taxes withheld from their payments
  6. They use their own vehicles and equipment to perform the work

Worker’s compensation insurance coverage is an important part of the claim.  Without insurance coverage, employers usually cannot pay the benefits they owe their injured employees.  Many employers are small companies or individuals and choose not to pay for insurance.  This is an important reason why you should ask if your employer has worker’s compensation insurance.  A legal option that sometimes helps injured workers in these situations is if your employer is performing work for another company or contractor.  Typical examples of this arrangement are found in construction and staffing agency arrangements.   Indiana’s work comp law allows us to take one step up and make a claim for benefits from the general contractor or staffing agency if the primary employer does not carry insurance.

When an employee is injured on the job, Indiana law requires the employer to offer various benefits.  The first and probably most important benefit is for medical treatment.  If you visit the doctors, therapists and medical providers the employers offer, they must pay for all your costs.  You are not responsible for deductible payments.  You are not required to use your own health insurance or take FMLA time. Since your health and well-being are your primary concerns, you may seek medical treatment immediately after your work accident.  If your employer or the insurance company deny you treatment, then you should seek legal help immediately.  The attorneys at Goodin Abernathy understand the process and will explain your rights. 

When a doctor or medical expert says you cannot work due to your injuries, you may claim Temporary Total Disability (“TTD”) payments.  Indiana’s work comp law requires employers to pay two – thirds (66.66%) of your regular income while you cannot work.  These TTD payments are not reduced for income tax or other typical withholdings.  Before the payments start, the doctor must determine that you miss more than seven (7) consecutive days of work.  If you miss thirty (30) consecutive days or more, than the employer must go back and pay you for the first 7 days of work that you missed.  Sometimes, workers do not miss time off work immediately after their injury.  But later, they require surgery or start treatment that keeps them off work.  The TTD rules also apply to these subsequent periods of missed work.   

When the employer or its insurance company determine that certain benefits should finish, they are required to send you a Termination of Benefits form.  The form looks like this www.in.gov/wcb/files/Blank-38911.pdf  If you dispute that benefits should stop, it is important to respond to these within seven days of receiving the form.  If you fail to respond, then technically the employer may stop sending you the TTD benefits. 

The final type of benefits owed to an injured employee involves the Permanent Partial Impairment (“PPI”) value of your injury.  Basically, this benefit pays the employee for the future impairment they will suffer from the injury.  That is, how will the injury interfere with their work and ability to earn income in the future.  Calculating this benefit is complicated.  For instance, the doctors and work comp Board uses the AMA Guidelines for reference.  https://www.ama-assn.org/delivering-care/ama-guides/ama-guides-evaluation-permanent-impairment-overview.  To understand it best, you should contact our Legalmente Hablando Indy team for representation.  We will examine the medical records, show you how the government calculates the benefits and describe your legal options for maximizing recovery of PPI benefits. 

Indiana law controls how attorneys charge for legal services in work comp claims.  All attorneys in the state charge the same percentages for contingency fees.  Since we charge a contingency fee, that means we collect our fees only when we win and you get paid money for your claim.  If we do not collect money, then you do not pay.  Our legal fee agreements are explained in both Spanish and English. 

If you or a loved one are injured in a workplace accident, contact the Goodin Abernathy legal team.  We handle death claims, amputations, orthopedic surgeries, electrocution, burns, explosions, head /brain injuries, spinal column fractures and broken bones.  You will find we care about our clients and patiently explain the legal process.  Count on us to aggressively represent your claim. Contact us today.

Can the Government or My Employer Require I Receive the COVID-19 Vaccine?


It is December 17, 2020, and this week was the beginning of vaccine distribution in the United States.

Many people are asking, “Can the government or my employer require me to get the Covid-19 Vaccine?

The simple answer is YES, but the likelihood of that happening is going to depend on a lot of factors, and it is not likely that the FEDERAL government would issue such a mandate.

Historically, states have had the right to mandate vaccines in order to ensure safety of the public. However, experts believe that it is very unlikely it will happen.

What is more likely is that employers and states will condition return or access to workplaces, public schools and universities upon getting the vaccine. Currently, all 50 states and Washington DC have laws requiring certain vaccines for students, but there are exceptions for personal, moral or other beliefs.

The industries most likely to mandate vaccines are going to be those most at risk for contracting the disease, such as those who work in HEALTHCARE, EDUCATION, PUBLIC SAFETY. Another important factor will be: AVAILABILITY OF VACCINE.

Currently, the available Coronavirus vaccines have been given Emergency Use Authorization (EUA) by the FDA. By the time the vaccines receive full FDA approval, which could take months. A lot will depend on how widespread the current vaccine has been distributed.

It is not clear if employers could legally mandate a vaccine that is only approved for Emergency Use. However, it would be very unusual to mandate a vaccine that has not been fully licensed and approved by the FDA. Right now, the consensus seems to be to encourage as many people as possible to voluntarily receive the vaccine. Assuming large numbers of people get vaccinated, there is a much less likely chance that there will be mandates by states or employers.

On the other hand, once the vaccine is approved by the FDA, if the number of people vaccinated is still too low to be effective, AND there is an available supply of the vaccine, we should probably expect to see some mandates.

As with any vaccine, there will be exceptions to those mandates; for example: pregnant women, people with disabilities, or those who hold deeply-rooted religious convictions.

So, what does that mean for you? To be vaccinated is a personal decision for each of us. I can tell you that I will be volunteering to get the vaccine as soon as it becomes available, and I look forward to putting an end to this deadly disease.

If you have questions about the vaccine as it relates to your employment, please feel free to contact me, Chip Clark, for a free consultation.

Also see, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

What is Fraud?

What is Fraud?

Most everyone is familiar with the word fraud. They’ve heard it used to describe a person that is not what they appear to be, or they have heard it used to describe an act of deceit. However, this common and acceptable use of the word fraud, in every-day conversation, can lead to misunderstandings as to what amounts to fraud under the law when an interaction with another person or business does not end in a desirable manner.

For example, most people have bought an item only to have it not work the way they expected, or they have hired someone to do a job and have been unhappy with the result. Unsatisfying as these types of experiences might be, it does not always mean a fraud has occurred within the meaning of Indiana law.

To prove actual fraud, within an Indiana legal context, there must be a:

  • (i) material misrepresentation of past or existing facts by the party to be charged
  • (ii) which was false
  • (iii) which was made with knowledge or reckless ignorance of the falseness
  • (iv) was relied upon by the complaining party and
  • (v) proximately caused the complaining party injury.

It is this first portion (i) that can sometimes be confusing because fraud cannot be based on unfulfilled promises or on statements concerning future events.

For example, if a person is given $20 in exchange for a promise to mow the lawn, and then fails to mow the lawn, the person has breached an oral contract to mow the lawn, but has not committed fraud because they only failed to fulfill a promise. On the other hand, if that same person said they had been hired by ten of the neighbors, they were incorporated and insured, and possessed industrial lawn mower equipment, a different result is likely if none of the statements were true. Indeed, if none of the neighbors had ever hired this person, there was no insurance or corporation, and there was no industrial equipment, the person likely made the material misrepresentations of past or existing facts that are needed to prove fraud.

From the above example, it can be seen that cases involving allegations of fraud are almost always unique to the specific facts and circumstances of the individual matter, and sometimes it can be challenging to know if you have been a victim of fraud or if you have been falsely accused of committing fraud.

The attorneys at Goodin Abernathy can help sort through these types of issues and are available for a free consultation if you have questions about fraud.

Business Interruption During COVID-19 & Commercial Insurance

Business Interruption During COVID-19 & Commercial Insurance

The economic impact on small businesses due to COVID-19 is undeniable. Further, the uncertainty surrounding the length of the shut-down and the availability of funds for relief loans has left many business owners wondering whether the business interruption coverage in their commercial general liability policy will provide coverage to offset financial losses incurred. Politicians in Washington have asked insurers to justify the refusal to pay out claims, and already class action lawsuits are being filed around the country against insurance companies.

When assessing whether business interruption coverage in a commercial general liability insurance policy applies to economic losses caused by COVID-19, the answer is—it depends on the particular policy. Generally speaking, however, most business interruption clauses require the loss of business income to be caused by direct physical loss or damage to the property that prevents the business from operating. Although it appears the COVID-19 virus can survive on surfaces for up to five (5) days, it is doubtful that this phenomenon would qualify as direct physical loss or damage to the property or be of sufficient duration to trigger most insurance clauses. In addition, many commercial general liability insurance policies exclude coverage for losses caused by viral contamination.
On the contrary, it is possible that the specific wording and coverages in any particular policy may provide coverage. For example, businesses operating in the food service industry or the hospitality industry may have specific clauses in their respective insurance policies that relate to losses caused by viruses or alternative business interruption losses like event cancellations. Consequently, all business owners who have sustained financial losses due to COVID-19 are encouraged to examine their insurance contracts.

If you need legal assistance in these matters, please contact us for a free initial legal consultation.

MAKING SENSE OF THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

MAKING SENSE OF THE FAMILIES FIRST CORONAVIRUS RESPONSE ACT (FFCRA)

What is the FFCRA and Do I Qualify?

What is the FFCRA and Do I Qualify?

Effective April 1, 2020 and continuing through December 31, 2020, the Families First Coronavirus Response Act (“FFCRA”) will require certain employers to provide their employees with paid sick leave and/or expanded Family Medical Leave for reasons related to COVID-19.

There are essentially 2 parts to the Act. Part 1 is an emergency expansion of the Family Medical Leave Act (“FMLA”). Part 2 requires certain employers to provide Federal Paid Sick Leave.

The Act applies to all employers with fewer than 500 employees. This includes both full and part-time employees. This number also includes dual employees, such as those provided by professional employment organizations (PEO’s) also known as staffing agencies. There may be exceptions for “extreme financial hardship,” but the Department of Labor has not yet produced any guidance for what that means.

The Act also provides for a “Distressed Small Business Exception,” which only applies to employers with 50 or less employees. Again, because this law is so new, there is little to no guidance from the Department of Labor as to who will qualify for this exception.

So, what does the FFCRA require employers to do?

Generally, all employers must provide their qualifying employees with:

Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined either (1) pursuant to Federal, State, or local government order or advice of a health care provider, and/or (2) is experiencing COVID-19 symptoms and seeking a medical diagnosis; AND up to 10 additional weeks of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of COVID illness or a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

FAQ’s about the FFCRA:

How does an employee qualify for these FFCRA benefits?

Some examples include:

  • Being diagnosed with the COVID-19 virus.
  • Having symptoms of the virus.
  • Being required to be in self-quarantine.
  • Being ordered by your doctor to self-quarantine.
  • Having to care for a spouse or child who is infected with the virus.
  • Another common example will be caring for a child whose school or daycare has been closed because of COVID-19 – Or having substantially similar condition based on guidance from the Secretary of Health and Human Services.

Can both parents claim paid leave under the FFCRA?

There is nothing in the law that suggests that both parents would not be entitled to paid leave if they otherwise qualify for the benefits.

Can my employer require me to use paid sick leave before paying benefits under the FFCRA?

It depends. The expanded benefits to FMLA do not kick in for the first 10 days, therefore you may be required to use unpaid sick leave to cover that gap. The mandatory sick leave would not require you to use accrued unpaid leave.

How much pay am I entitled to receive?

It depends on whether you are seeking the expanded benefits of the FMLA, or the mandatory paid sick leave. Normally, a qualifying employee is entitled to 12 weeks of unpaid leave under the FMLA. The new law expands that to include paid leave of two-thirds of base pay based on number of hours normally worked. The maximum is $200 per day, or $10,000 per employee, based on 12 weeks of eligibility.

The mandatory paid sick leave under the FFCRA is capped at $511 per day, with a total benefit of $5,110 per employee.

How are employers expected to pay for these FFCRA benefits?

The government has rolled out several plans to help small business employers pay for these new benefits. One option is a dollar for dollar tax credit for payments made. A second option is a small business loan through the Small Business Administration (SBA) to cover payroll costs. If certain conditions are met, and all of your employees remain on the payroll for a specified period, these loans will be forgiven (they don’t have to be paid back). Lastly, some employers may have business interruption insurance that could be applicable. Definitely check your policy to determine coverage.

Can my employer disclose my diagnosis of COVID-19?

Yes, under certain circumstances, there are exceptions to HIPPAA’s confidentiality requirements. For example, an employer can disclose such a diagnosis for the safety of your co-workers.

What if I contracted COVID-19 at work, will workers’ compensation cover my treatment?

There is much we don’t know about how the new laws will be interpreted, and whether a diagnosis of COVID-19 could be considered an occupational disease. Certainly, for those on the front lines fighting this disease, for instance health care workers, an argument could be made that it is a risk of the job.

If I have to provide these FFCRA benefits, my business will be forced to shut down. Are there any exceptions?

Yes. Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

If I have to take leave, can I get my job back when I return?

Yes. The new law requires employers with 25 or more employees to reinstatement after 12 weeks. If your employer has less than 25 employees they must “make reasonable effort” to reinstate an employee who has taken leave under the Act.

In these uncertain times, it is always best to know your rights. If you have questions about Coronavirus/COVID-19, and your entitlement to benefits under the new laws, please contact us for a free legal consultation. We are not currently taking in-person interviews in our efforts to avoid unnecessary spread of the virus, but we are always available for telephonic consultations.

House Bill 1070 – Distracted Driving

House Bill 1070 – Distracted Driving

We have all seen it, and perhaps even done it ourselves. Driving down the road with a cell phone in our hand. Indiana House Bill 1070 “Distracted Driving,”(read here) passed the House by a vote of 86-10 last week and has been referred to the Indiana Senate. This bill will make it illegal to have a cell phone or other “mobile device” in one’s hand while operating a motor vehicle in Indiana. It modifies the existing law which prohibits texting while driving to include all uses of a mobile device that are not hands free or voice activated. The current law which makes it “unlawful to type, transmit, or read e-mail or text messages on a communication device while driving in Indiana,” has been in effect since July 1, 2011, but has been ineffective in curbing the behavior. This is due primarily, because the existing law as written, is difficult to enforce. This new law could go a long way to prevent distracted driving, and potentially save lives, because it will allow officers to write tickets simply by seeing a person operating a vehicle with a device in their hand, and there will be no requirement that they prove that the operator was actually using the device.

The Indiana Department of Labor defines distracted driving as, “any non-driving activity a motorist engages in that has the potential to distract him or her from the primary task of driving. Stressful jobs, busy lifestyles and technology are just a few reasons why individuals may engage in distracted driving activities.” https://www.in.gov/dol/2873.htm

There Are Three Primary Types of Distracted Driving:

  • Cognitive distraction takes your mind off the road.
  • Visual distraction takes your eyes off the road.
  • Manual distraction takes your hands off the wheel.

Texting, or otherwise using a device to search the internet, change a song, look up a contact, or like a Facebook post can be extremely dangerous because it involves all three types of distraction. Your mind is not focused on the road because you are concentrating on your device. Your eyes are also taken away from the road, as are your hands. As we all know, it only takes a second of distraction to cause a crash.

The U.S. Department of Transportation reports that in 2012, 3,328 people died in crashes linked to driver distraction, and more than 421,000 more people suffered a distracted driving-related injury. In fact, 17 percent of all crashes resulting in an injury involved driver distraction. More recent statistics indicate nine people are killed and more than 1,000 injured daily in accidents in which at least one driver was distracted.

  • Nearly 4,000 people were killed in crashes involving distracted drivers in 2015.
  • Distracted driving was the reported cause of death of 3,450 people in 2016.
  • An estimated 391,000 drivers were injured in distracted driving crashes in 2017.
  • For comparison, there were 39,773 gun deaths in the United States in 2017.
  • In 2019, distracted driving was a reported factor in 8.5% of fatal motor vehicle crashes. https://www.thezebra.com/distracted-driving-statistics/

If you support this Bill we would encourage you to contact your State Senator and request that they vote in favor of HB 1070, click here.

If you or a loved one have been injured or killed by a distracted driver, it is important to know your rights, and to preserve important evidence to support your claim. Call us for a free consultation.