DTCI: Time Limitations and the Worker’s Compensation Act

By Diana L. Wann

Two recent cases, a Court of Appeals decision and an unappealed decision by the full Worker’s Compensation Board, illustrate the board’s method of applying statutes governing filing limitations. They address the most basic analysis defense counsel may make when first reviewing a workers’ comp case: namely, whether the plaintiff’s case has been, or can be, timely brought.

Statutory authority

The Indiana Worker’s Compensation Act provides medical benefits and compensation for disability and permanent impairment for employees who sustain “personal injury by accident arising out of and in the course of” a covered employment relationship. Upon notice of a reported or alleged accidental injury, the employer must investigate the claim and accept or deny the claim within certain time frames. In cases in which no compensation has been paid or in which compensability is disputed, Ind. Code § 22-3-3-3 provides that the employee has two years from the date of the alleged injury to file an action with the board. That statute is a claims-made provision, is jurisdictional and — unlike some civil statutes of limitation — cannot be waived or tolled. Ind. Code § 22-3-3-3 is a nonclaim statute, as opposed to a general statute of limitations. After two years, it “forever” bars plaintiff’s claim, which can be resurrected neither by waiver nor stipulation. Wawrinchak v. United States Steel Corp., 267 N.E. 2nd 395 (Ind. Ct. App. 1971).

However, the act also provides that claims in which compensation has been paid may be reopened by the parties or modified by the board “on account of a change of conditions.” Ind. Code § 22-3-3-27. Section 27(c) provides that such an application must be filed within two years “from the last day for which compensation was paid” under the act.

Practitioners are often uncertain which statute governs particular facts and may struggle to understand the rulings of single hearing members on the issue. In mid-2020, the board addressed the applicable time limitations in Sampson v. Kova Ag Products, Inc. Although that matter was not appealed and the board’s administrative decisions lack precedential value, the board’s decision may help practitioners distinguish between Ind. Code § 22-3-3-3 and Ind. Code § 22-3-3-27. Soon after Sampson, the Indiana Court of Appeals handed down an opinion in another time limitations case, Gilley’s Antique Mall v. Sarver, 157 N.E.3d 549 (Ind. Ct. App. 2020), trans. denied. These two cases provide new and illuminating guidance to even the most seasoned worker’s compensation professional.

Ind. Code § 22-3-3-3 – Limitation for filing original claim

An application for adjustment of claim initiates many worker’s compensation cases. It is the administrative equivalent of a complaint in a civil action. In cases that for any reason were not accepted as compensable by the employer or in which no compensation was paid under the act, the right to worker’s compensation is forever barred if an application is not filed within two years of the accident or, if death results therefrom, two years after such death. See Ind. Code § 22-3-3-3.

In the Gilley’s matter, the employee was injured on Nov. 10, 2015, while working on a roofing project at Gilley’s Antique Mall for his employer, Humphreys Construction. The employee fell through a foam board covering a hole in the roof. Because Humphreys was uninsured, liability for the injury fell upon Gilley’s, as it had failed to secure a certificate stating that Humphreys had worker’s compensation insurance. The employee received medical treatment for multiple injuries, which may have been privately paid or may have remained outstanding since there was no worker’s compensation insurance coverage.

Eighteen months later, the employee filed an application with the board naming the K&K Group as a defendant and seeking to recover compensation for the earlier injuries. Ten months later — now two years, four months after the original incident — he filed an amended application asserting claims against Gilley’s and Jeff Hines, asserting that Humphreys lacked insurance coverage. Gilley’s and Hines filed motions to dismiss, alleging that the employee had failed to add them as defendants within the two-year limitation period provided at Ind. Code § 22-3-3-3.

A board member granted the motions, and plaintiff sought review by the full Worker’s Compensation Board. Following a hearing, the full board reversed the decision of the hearing member and, relying on 631 I.A.C. 1-1-7 governing the joinder of additional parties, determined the employee could add additional defendants at any time after his claim commenced, providing his initial application against the statutory employer was timely filed, which it was. Gilley’s and Hines appealed.

The Court of Appeals found that the board had improperly relied on 631 I.A.C. 1-1-7, which allows for joinder of defendants and authorizes the board “at any time, upon a proper showing, or of its own motion, to order any additional party be joined, when it deems the presence of the party necessary.” The Court noted, “there is no statutory authority for the Board to increase the length of time in the statute of limitations for filing claims.” With regard to the issue of timeliness of joining additional defendants, Gilley’s is a case of first impression and emphasizes for practitioners the long-standing requirement that initial claims must be filed against the employer and all potential defendants within two years after occurrence of an alleged accidental injury.

Now to complicate things a little.

Claims may be reopened

As noted above, a worker’s compensation claim may be reopened for an alleged “change of conditions” under Ind. Code § 22-3-3-27:

(a) The power and jurisdiction of the worker’s compensation board over each case shall be continuing and from time to time it may, upon its own motion or upon the application of either party, on account of a change in conditions, make such modification or change in the award ending, lessening, continuing, or extending the payments previously awarded, either by agreement or upon hearing, as it may deem just, subject to the maximum and minimum provided for in IC 22-3-2 through IC 22-3-6.

…

(c) The board shall not make any such modification upon its own motion nor shall any application therefor be filed by either party after the expiration of two (2) years from the last day for which compensation was paid. The board may at any time correct any clerical error in any finding or award.

Change of condition claim

In Gilley’s, no compensation was ever paid to the employee, so the employee was required to file an application no later than two years from the occurrence. In the matter of Sampson v. Kova Ag Products, however, the employee’s initial claim was accepted by the employer, which paid medical benefits and compensation under the act. This is perhaps more common than filing an original application in a disputed case and distinguishes the act’s two statutory time limitation provisions.

Routine work injury claim

Sampson was injured while working for Kova Ag Products on Aug. 19, 2015. He reported his injury to his employer and its insurance carrier, and his claim was accepted as compensable. The employer provided medical benefits under the act and, pursuant to an agreement to compensation it prepared, paid Sampson compensation for temporary total disability benefits (TTD). The employer then issued and filed a statutorily required notice that compensation for TTD would be discontinued after 15 months.

Plaintiff contended he was entitled to additional benefits or compensation under the Act and filed an application with the board two years and two days after the incident and amended it after that to specifically allege a change in conditions. The application was filed more than two years after the injury but less than two years after the last date for which compensation was paid.

Defendant moved to dismiss, asserting that the application was untimely because it was not filed within two years of the original accidental injury. A member of the board denied the motion to dismiss, and the employer appealed to the full Worker’s Compensation Board. Following a hearing, the full board affirmed the hearing member, finding the application was timely filed and remanding the case to the single hearing member for hearing on the merits. The full board’s decision was not appealed and is now final. It may provide some insight into the board’s analysis of the two distinct time limitation provisions contained in the act.

Claim for compensation

Ind. Code § 22-3-3-3 provides a jurisdictional two-year filing deadline for a claim under the act. While attorneys may consider a “claim” to be a formal application, in the context of the compensable claim in the Sampson matter, the full board, in a detailed decision, observed that a claim may include a formal filing but may also include the reporting of an injury and the procedure of providing medical benefits and paying compensation to injured workers as prescribed by the act. In this case, the board found that the employer accepted and paid the employee’s claim until it discontinued compensation. Up until then, no dispute existed between the parties. Indeed, our Court of Appeals has held that during the time in which no dispute exists, the filing of an application may be premature. Globe Valve Corp. v Thomas, 424 N.E.2d 155 (Ind. Ct. App. 1981). The distinction is illustrated in these two cases: acceptance of compensability and payment of compensation in Sampson; no compensation being paid to plaintiff in Gilley’s.

In the Sampson matter, the board found that compensation for TTD had been paid, so the employee had two years from the last date for which compensation was paid to file an application, and the filing was therefore timely.

Defendant contended no compensation for TTD had been paid

Despite having accepted the worker’s claim as compensable and having paid compensation for TTD as documented in an agreement to compensation, the employer in Sampson argued that since the agreement to compensation had been neither signed by plaintiff nor approved by the board, it did not constitute an agreement and its payments of TTD did not constitute compensation for purposes of determining the deadline for filing an application under Ind. Code § 22-3-3-27. Defendant, relying on a 1925 case, attempted to argue that the payments it made to the employee as documented by its filed agreement were “voluntary” and did not constitute “compensation” under the act. Defendant argued that a formally signed and board-approved agreement was required. The board disagreed. Defendant paid and the worker accepted payments for lost wages for more than 15 months pursuant to an agreement that the defendant itself had prepared. Furthermore, the board’s current practice of accepting compensation agreements in electronic form (rather than paper copies circulated and filed by U.S. Mail) has evolved substantially since 1925.

History of board application of change of condition

In its decision, the full board recited its consistency over the years in deciding the timeliness of applications to reopen claims. Indeed, the board’s enabling statute, Ind. Code § 22-3-1-3, grants it the ongoing power and jurisdiction to modify or change awards — as long as an application is otherwise timely filed. In both Fitzgerald v. U.S. Steel, 892 N.E.2d 659 (Ind. Ct. App. 2008), and Krause v. IUPUI, 866 N.E.2d 846 (Ind. Ct. App. 2007), Indiana courts have upheld the ongoing jurisdiction of the board over previous awards. As the court noted in Krause, it upheld the board’s allowance of an application within two years of the last day for which compensation was paid in reliance on the board’s interpretation of the statute it administers and “in light of its expertise.”

As the board award noted, to find otherwise would result in an inhumane interpretation of the principle on which the Indiana act and other states’ similar laws were enacted. If not for the ongoing jurisdiction of the board, the workers most significantly affected would be those severely and permanently injured for whom medical treatment and ongoing compensation for disability is routinely provided by statute for a period of years. If the employer’s arguments were adopted, those injured workers would be required to hire counsel and file applications within two years of the original injury simply to avoid losing employer-provided medical care after two years, even in an otherwise accepted and compensable case. The result would be increased legal costs and litigation expenses to employers and employees alike, along with significantly increased and pointless litigation.

Instructive guidance

These two cases clarify and assist workers’ compensation attorneys in our ability to provide counsel to our clients and appropriately defend untimely filed cases.

Diana Wann chairs the DTCI Worker’s Compensation Section and is counsel in the Jackson Kelly Evansville office. The opinions expressed in this article are those of the author.•