In IC 22-3-2 through IC 22-3-6, unless the
context otherwise requires:
(a) "Employer" includes the state and any political subdivision, any
municipal corporation within the state, any individual or the legal
representative of a deceased individual, firm, association, limited
liability company, limited liability partnership, or corporation or the
receiver or trustee of the same, using the services of another for pay. A
corporation, limited liability company, or limited liability partnership
that controls the activities of another corporation, limited liability
company, or limited liability partnership, or a corporation and a limited
liability company or a corporation and a limited liability partnership
that are commonly owned entities, or the controlled corporation,
limited liability company, limited liability partnership, or commonly
owned entities, and a parent corporation and its subsidiaries shall each
be considered joint employers of the corporation's, the controlled
corporation's, the limited liability company's, the limited liability
partnership's, the commonly owned entities', the parent's, or the
subsidiaries' employees for purposes of IC 22-3-2-6 and IC 22-3-3-31.
Both a lessor and a lessee of employees shall each be considered joint
employers of the employees provided by the lessor to the lessee for
purposes of IC 22-3-2-6 and IC 22-3-3-31. If the employer is insured,
the term includes the employer's insurer so far as applicable. However,
the inclusion of an employer's insurer within this definition does not
allow an employer's insurer to avoid payment for services rendered to
an employee with the approval of the employer. The term also includes
an employer that provides on-the-job training under the federal School
to Work Opportunities Act (20 U.S.C. 6101 et seq.) to the extent set
forth in IC 22-3-2-2.5. The term does not include a nonprofit
corporation that is recognized as tax exempt under Section 501(c)(3)
of the Internal Revenue Code (as defined in IC 6-3-1-11(a)) to the
extent the corporation enters into an independent contractor agreement
with a person for the performance of youth coaching services on a
part-time basis.
(b) "Employee" means every person, including a minor, in the
service of another, under any contract of hire or apprenticeship, written
or implied, except one whose employment is both casual and not in the
usual course of the trade, business, occupation, or profession of the
employer.
(1) An executive officer elected or appointed and empowered in
accordance with the charter and bylaws of a corporation, other
than a municipal corporation or governmental subdivision or a
charitable, religious, educational, or other nonprofit corporation,
is an employee of the corporation under IC 22-3-2 through IC 22-3-6. An officer of a corporation who is an employee of the
corporation under IC 22-3-2 through IC 22-3-6 may elect not to
be an employee of the corporation under IC 22-3-2 through IC 22-3-6. An officer of a corporation who is also an owner of any
interest in the corporation may elect not to be an employee of the
corporation under IC 22-3-2 through IC 22-3-6. If an officer
makes this election, the officer must serve written notice of the
election on the corporation's insurance carrier and the board. An
officer of a corporation may not be considered to be excluded as
an employee under IC 22-3-2 through IC 22-3-6 until the notice
is received by the insurance carrier and the board.
(2) An executive officer of a municipal corporation or other
governmental subdivision or of a charitable, religious,
educational, or other nonprofit corporation may, notwithstanding
any other provision of IC 22-3-2 through IC 22-3-6, be brought
within the coverage of its insurance contract by the corporation by
specifically including the executive officer in the contract of
insurance. The election to bring the executive officer within the
coverage shall continue for the period the contract of insurance is
in effect, and during this period, the executive officers thus
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:
(A) is an independent contractor in the construction trades and
does not make the election provided under this subdivision, the
owner must obtain a certificate of exemption under IC 22-3-2-14.5; or
(B) is an independent contractor and does not make the election
provided under this subdivision, the owner may obtain a
certificate 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:
(A) is an independent contractor in the construction trades and
does not make the election provided under this subdivision, the
partner must obtain a certificate of exemption under IC 22-3-2-14.5; or
(B) is an independent contractor and does not make the election
provided under this subdivision, the partner may obtain a
certificate 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 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 376 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.
(11) A person who enters into an independent contractor
agreement with a nonprofit corporation that is recognized as tax
exempt under Section 501(c)(3) of the Internal Revenue Code (as
defined in IC 6-3-1-11(a)) to perform youth coaching services on
a part-time basis is not an employee for purposes of IC 22-3-2
through IC 22-3-6.
(12) An individual who is not an employee of the state or a
political subdivision is considered to be a temporary employee of
the state for purposes of IC 22-3-2 through IC 22-3-6 while
serving as a member of a mobile support unit on duty for training,
an exercise, or a response, as set forth in IC 10-14-3-19(c)(2)(B).
(13) A driver providing drive away operations is an independent
contractor and not an employee when:
(A) the vehicle being driven is the commodity being delivered;
and
(B) the driver has entered into an agreement with the party
arranging for the transportation that specifies the driver is an
independent contractor and not an employee.
(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 22-2-18-40 (before its expiration on June 30, 2021) and IC 22-2-18.1-23, 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 20-37-2-7 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 the employee's earnings.
(4) In computing the average weekly wages to be used in
calculating an award for permanent impairment under IC 22-3-3-10 for a student employee in an approved training program
under IC 20-37-2-7, the following formula shall be used.
Calculate the product of:
(A) the student employee's hourly wage rate; multiplied by
(B) forty (40) hours.
The result obtained is the amount of the average weekly wages for
the student employee.
(e) "Injury" and "personal injury" mean only injury by accident
arising out of and in the course of the employment and do not include
a disease in any form except as it results from the injury.
(f) "Billing review service" refers to a person or an entity that
reviews a medical service provider's bills or statements for the purpose
of determining pecuniary liability. The term includes an employer's
worker's compensation insurance carrier if the insurance carrier
performs such a review.
(g) "Billing review standard" means the data used by a billing
review service to determine pecuniary liability.
(h) "Community" means a geographic service area based on ZIP
code districts defined by the United States Postal Service according to
the following groupings:
(1) The geographic service area served by ZIP codes with the first
three (3) digits 463 and 464.
(2) The geographic service area served by ZIP codes with the first
three (3) digits 465 and 466.
(3) The geographic service area served by ZIP codes with the first
three (3) digits 467 and 468.
(4) The geographic service area served by ZIP codes with the first
three (3) digits 469 and 479.
(5) The geographic service area served by ZIP codes with the first
three (3) digits 460, 461 (except 46107), and 473.
(6) The geographic service area served by the 46107 ZIP code and
ZIP codes with the first three (3) digits 462.
(7) The geographic service area served by ZIP codes with the first
three (3) digits 470, 471, 472, 474, and 478.
(8) The geographic service area served by ZIP codes with the first
three (3) digits 475, 476, and 477.
(i) "Medical service provider" refers to a person or an entity that
provides services or products to an employee under IC 22-3-2 through
IC 22-3-6. Except as otherwise provided in IC 22-3-2 through IC 22-3-6, the term includes a medical service facility.
(j) "Medical service facility" means any of the following that
provides a service or product under IC 22-3-2 through IC 22-3-6 and
uses the CMS 1450 (UB-04) form or the CMS 1500 (HCFA-1500)
form for Medicare reimbursement:
(1) An ambulatory outpatient surgical center (as defined in IC 16-18-2-14).
(2) A hospital (as defined in IC 16-18-2-179).
(3) A hospital based health facility (as defined in IC 16-18-2-180).
(4) A medical center (as defined in IC 16-18-2-223.4).
(k) "Pecuniary liability" means the responsibility of an employer or
the employer's insurance carrier for the payment of the charges for each
specific service or product for human medical treatment provided
under IC 22-3-2 through IC 22-3-6, as follows:
(1) This subdivision applies before July 1, 2014, to all medical
service providers, and after June 30, 2014, to a medical service
provider that is not a medical service facility. Payment of the
charges in a defined community, equal to or less than the charges
made by medical service providers at the eightieth percentile in
the same community for like services or products.
(2) Payment of the charges in a reasonable amount, which is
established by payment of one (1) of the following:
(A) The amount negotiated at any time between the medical
service facility and any of the following, if an amount has been
negotiated:
(i) The employer.
(ii) The employer's insurance carrier.
(iii) A billing review service on behalf of a person described
in item (i) or (ii).
(iv) A direct provider network that has contracted with a
person described in item (i) or (ii).
(B) Two hundred percent (200%) of the amount that would be
paid to the medical service facility on the same date for the
same service or product under the medical service facility's
Medicare reimbursement rate, if, after conducting the
negotiations described in clause (A), an agreement has not been
reached.
(l) "Service or product" or "services and products" refers to medical,
hospital, surgical, or nursing service, treatment, and supplies provided
under IC 22-3-2 through IC 22-3-6.
Formerly: Acts 1929, c.172, s.73; Acts 1933, c.243, s.1; Acts
1955, c.337, s.1; Acts 1969, c.94, s.7. As amended by Acts 1979,
P.L.228, SEC.1; Acts 1981, P.L.199, SEC.2; P.L.37-1985, SEC.31;
P.L.28-1988, SEC.47; P.L.95-1988, SEC.11; P.L.106-1992, SEC.11;
P.L.8-1993, SEC.282; P.L.75-1993, SEC.5; P.L.1-1994, SEC.110;
P.L.110-1995, SEC.33; P.L.216-1995, SEC.4; P.L.2-1996, SEC.265;
P.L.258-1997(ss), SEC.12; P.L.235-1999, SEC.5; P.L.31-2000, SEC.6;
P.L.202-2001, SEC.7; P.L.1-2005, SEC.182; P.L.201-2005, SEC.5;
P.L.1-2006, SEC.339; P.L.180-2009, SEC.1; P.L.168-2011, SEC.11;
P.L.71-2013, SEC.10; P.L.275-2013, SEC.11; P.L.99-2014, SEC.3;
P.L.225-2015, SEC.1; P.L.204-2018, SEC.10; P.L.63-2019, SEC.1;
P.L.147-2020, SEC.17; P.L.160-2022, SEC.5.