Reversal: Worker’s Comp Board ruling adding defendants came too late

A worker injured in a fall as he replaced the roof of an antique mall outside Plainfield named the mall and its owner too late after finding the contractor he was working for lacked required worker’s compensation insurance, the Indiana Court of Appeals ruled Wednesday.

Doug Sarver fractured a rib and sustained other injuries during the fall from the roof on Nov. 10, 2015. After filing an initial application for worker’s comp benefits to cover his medical expenses on May 17, 2017, initially naming K&K Group, he amended the claim to include his direct employer, Humphreys Construction, as well as C’Ville Steel Roofs as defendants.

It wasn’t until March 19, 2018, that Sarver filed an amended application ultimately naming Gilley’s and Hines. “On April 19, 2018, Gilley’s and Hines filed a motion to dismiss Sarver’s claims based on Sarver’s failure to add them to the case within the two-year limitation period set forth in Indiana Code section 22-3-3-3,” Judge James Kirsch wrote for the panel.

After the single hearing member granted the motion to dismiss, the full board conducted a review hearing and reversed, finding “that Gilley’s and Hines did not obtain a certificate of compliance from the Board ‘confirming that Humphreys Construction/C’Ville Steel Roofs or any of Humphreys’ other enterprises had appropriate worker’s compensation insurance coverage.’ The board concluded that under 631 Indiana Administrative Code 1-1-7 4, Sarver could add additional defendants at any time after his claim has commenced, and that Gilley’s and Hines were secondarily liable under the act for compensation owed to Sarver for his injuries.

The Indiana Court of Appeals reversed the full board Wednesday in Gilley’s Antique Mall, et al. v. Doug Sarver, 20A-EX-00396. 

The panel found the board’s application of the administrative rule “extended the statute of limitations without authorization. Thus, we conclude that the Board’s decision to allow the addition of Gilley’s and Hines as defendants outside the two-year statute of limitations period was erroneous and contrary to the Act.”

“Sarver’s initial application was filed within two years of the occurrence of the accident, and there is no dispute that his amended application naming Gilley’s and Hines was filed outside the two-year limitation period. Gilley’s and Hines note that the ‘upon a proper showing’ language in the administrative rule contemplates determining whether the statute of limitations has expired before adding an additional defendant. We agree,” Kirsch wrote. “… (T)here is no statutory authority for the Board to increase the length of time in the statute of limitations for filing claims.”

Finding the statute of limitations question dispositive, the COA did not further address Gilley’s and Hines’ arguments on appeal regarding whether Sarver was an independent contractor rather than an employee and the amount of disability owed to him.