Worker's Compensation Lien Recovery
The Supreme Court of Indiana issued a decision in the Depuy v. Farmer, 847 NE 2d 160 (Ind. 2006) in which the lien and subrogation provisions of I.C. 22-3-2-13 have been amended and/or clarified. Traditionally, I.C. 22-3-2-13 has universally been applied to terminate all workers’ compensation benefits in the event of a third party settlement. In the Depuy case, the Indiana Supreme Court has limited the employer’s right to terminate benefits in the event of a third party claim. The Supreme Court has suggested, but NOT RULED that when a third party settlement is obtained before a workers’ compensation claim has been resolved, and is in an amount less than the anticipated worker’s compensation benefit, than the third party settlement may not operate as a bar to the payment of future worker’s compensation benefits.
Indiana Self-Insurers Association, Inc. - June 2012 Seminar
CAUSATION-APPLYING RISK ANALYSIS
For a claim to be compensable, there must have been a personal injury or death arising out of and in the course of the employment. The arising out of test requires a causal connection between the employment and the injury and that causal connection is established or defeated by a consideration of the various risks involved. The case law generally identifies classes of risks, as follows:
- Personal Risk - Injuries which are caused by personal risks only are not compensable.
- Employment Risk - Injuries which are caused by employment risks only are compensable.
- Neutral Risk - Injuries which are proven to have no particular relationship to either a personal risk or an employment risk, but are in the course of the employment, are compensable pursuant to the positional risk doctrine.
- Combined Risk - Injuries which contain elements of risk referable to both the employee and the employer are compensable, provided that the employment risk contributes to the injury.