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The Ins and Outs of Worker’s Compensation

Important Facts About the Way Indiana’s System Is Set Up

Attorneys Marc Lopez and Enrique Flores recently discussed the benefits that an injured employee is entitled to, the most common stumbling blocks in worker’s comp cases, and who Indiana’s laws are really designed to protect. What follows is a lightly edited transcript of their conversation.

Marc Lopez
This is Marc Lopez. I’m here with my good friend, Enrique Flores. Enrique, say hi, man.

Enrique Flores
Hello. How are you, Marc? Thanks for having me.

Marc Lopez
No, I appreciate you doing this with me. I’ve actually known Enrique going on about—I want to say, like, 10 years at this point. It’s been on-and-off for a while.

Enrique Flores
At least.

Marc Lopez
Right now, we are serving on a small firm committee together, and it is a lot of fun. I get to spend a little extra time with him, and Enrique has an amazing practice here in Indianapolis doing injury and worker’s compensation.

So, Enrique, tell us a little bit about your practice.

Enrique Flores
Well, just like you said, I do personal injury and worker’s compensation. I have a lot more Spanish-speaking clients, because I’m bilingual, and there’s a great need for that. So I have clients that are undocumented, that are documented, that are DACA, non-DACA—so it brings a great mix of clients, and it’s great to be able to help them.

Marc Lopez
Absolutely, and I love it when I get a call for worker’s compensation. I know that if I send them to Enrique, he’s going to be able to take care of them. It doesn’t matter what language they speak, and he’s just a very hard worker. So I just want—

Enrique Flores
Thank you.

Marc Lopez
to talk to you about worker’s compensation. I know that a lot of people know that if you’re injured on the job, workers’ compensation is how you’ll be taken care of—but give us some background on that.

Enrique Flores
Sure. Well, in Indiana, if you’re injured on the job, and let’s say that it is established that you’re an employee—that usually means a W-2 employee—the benefits that are owed to you are your treatment until you’re released at maximum medical improvement and weekly benefits—as in payments—they’re called TTD. Those are paid if a doctor says that you’re not able to work or if you’re restricted from working to a point where the employer cannot offer you a job at that point. So those are paying at two-thirds every week. Then at the end of the case, you have the right to a payment for your indemnity—that means the permanency in your injury—and they also have to pay for whatever future treatment you require.

So I’ve had cases where people ended up in a wheelchair, and the insurance company either has to arrange a lump-sum payment for those future needs of this client within the act, or to keep the claim open and just pay as they go. But those are the basic benefits when you’re looking at just a worker’s compensation case with no complex issues.

Marc Lopez
Enrique, one of the things you mentioned is they have to pay two-thirds salary if a doctor says, You can’t go back. Does the employer have the right to offer you some alternative position? If you can’t bend over, can they offer you a sitting job? And do you have to accept this different position?

Enrique Flores
It all depends on the restrictions. Let’s take a back injury, and the doctor says the person cannot bend or lift anything over 20 pounds. Yes—you present your restrictions to the employer, and the employer can accommodate you. A lot of times, they can put you at a desktop or just supervising, answering calls—whatever it is. So they can, and they mostly do. 

Sometimes—as I mentioned before, though—if the restrictions are to a point where the employer says, Well, I can’t have you here, just go home and get through the treatment—that’s when the benefits kick in.

Marc Lopez
And if the employer does accommodate you with a different job—you have to accept that? Or is it . . . ?

Enrique Flores
It depends. I’ve had cases where the doctor has said, Well, these are the restrictions, and the employer somehow finds a way. I’ve had extreme cases, of course, where a person was supposed to lay down every hour for 15 minutes, because that’s the only way that they can alleviate the pain. Well, the employer put a camping cot in the office—and this is low to the ground, and the person has a major back injury, and he can’t get all the way to the ground and do that. So that’s an instance where we actually had to fight—where you don’t have to take that. 

But if it’s reasonable, and if you do have a major injury—let’s say that the restriction says, The person has to be able to get up and walk every hour for 10 minutes—and they offer that, fully knowing what the restrictions are—then yes, the person in a way has to take it.

Marc Lopez
That’s super interesting. If you’re injured on the job, and you’re fighting about it with your employer—like you’re saying, you had to fight where the person couldn’t lay down—you’re not talking about going to an actual courtroom, like if you’re injured in a car crash. What is the litigation process in worker’s compensation?

Enrique Flores
Well, we’re all used to what we see on TV, right? What litigation is—you go in front of a judge, and it’s exciting—this is nothing like that. This is nothing like that. It can be exciting in a different way, but no, it’s not a formal courtroom. It’s an administrative process, meaning that the Worker’s Compensation Board is the department that governs or adjudicates this—they’re the ones that act as the judge at your hearing. In a way, it’s an informal setting of a civil court—or in your case with the criminal cases you still have, we call them single-hearing members, or you can call them judges. But there’s certain steps you have to take before you can go to a civil court—you can, but that’s the process of appeals. As far as litigation goes, you follow some of the rules of the civil litigation side, but it’s all done within that body of the Worker’s Compensation Board, so it is a little bit different . . . or a lot different.

Marc Lopez
And that’s over at the Indiana Government Center, am I right? Those single hearings?

Enrique Flores
Well, yes. So, the main office of the Worker’s Compensation Board is at the Government Center South, right there on Washington Street. That’s also the single-hearing member for Marion County. There’s different regions throughout the state. The one I work most on is Marion County.

Marc Lopez
So people from Lake County aren’t driving down to Marion County for their hearings, am I right about that?

Enrique Flores
You are correct. The only time that they would is if, for example, Lake County has its own hearing member and a local office where we go to a local court, I guess—if you want to call it that. But let’s say that they get through the single-hearing member—if they appeal it to the full board, then that’s the only time they would have to come over here, because that means all the hearing members plus the chair of the Worker’s Compensation Board. But an injured worker that lives and works in Lake County does not have to come all the way to Indianapolis to have a hearing. No.

Marc Lopez
Enrique, you’ve been doing worker’s compensation litigation for quite some time. What are the top three things you see injured workers do that can hurt their claim?

Enrique Flores
Well, I just spoke with a client this morning about that. It was a prospect, actually—a new client—and she called us this morning, and she was afraid of getting injections in her neck. She has a concussion—possibly more—but she mentioned how she may want to tell a doctor that she doesn’t want the injections, because she’s had injections before in another part of her body, and they didn’t work, and she feels that it got worse. So I would say the number one thing is declining treatment that a worker’s compensation doctor or a doctor that’s treating them has recommended. That can actually hurt your case. First of all, they can deny benefits, and they can use that against you.

The second thing is reporting the injury in a timely manner. It is hard enough when it is reported on time, and it is denied for whatever reason. But when you have something that—let’s say that the person thought just telling their supervisor was reporting it. Three months pass by, nothing happens, and they never check back, because the pain is there, but they have to work, and they never follow up. 

Now we have an issue, because they’re calling me and saying, Well, I have to go to my own doctor for this. So now we have to fix that, and make sure that the employer is going to pick up their claim. In Indiana, there’s really no codified time to report, meaning that if you report it a week later, it’s fine, a month later, it should still be fine—but there’s no time where they say, Well, no, if you don’t report it by 90 days, it’s automatically denied. So we can work with that.

Now, the third one . . . there’s so many that come up, but I would say the third one is the fear of undocumented people that their claim might get dropped or that their claim might not get picked up because they’re undocumented. Well, I would say half of my Spanish-speaking clients that are worker’s compensation clients are undocumented. When they call me, the first thing I want to do is make sure that they’re asking me that question. I clarify that they are undocumented—if they are—and just tell them, Look, that’s probably not going to be the biggest issue in your case, and it usually isn’t. Maybe the timely reporting or denied benefits or the way the accident happened—those might be the bigger issues in the case. That’s the number one thing that I see within the Hispanic community that comes up, but the first thing that we do is just to ease their mind and say, Look, this is probably going to be fine.

Marc Lopez
I’m sure that’s got to be a heavy burden on some people, because there’s genuine fear in the community of bringing too much attention to yourself. You made an interesting statement there about how they went to their own doctor. When you are injured on the job, do you have the right to go to your own doctor, or do you have to use the company doctor?

Enrique Flores
You have to use the company doctor if you want to keep those benefits and if you want to make sure they’re going to cover it. We fight for as many rights as our client can get—as an injured worker can get—because we have so little, and the employers get so much. It’s a trade-off. So yes, they get the benefits, and yes, they get the payments—but the employer gets to choose what doctor to send them to. These are doctors through their insurance company—they know where the money is coming from. We see a lot of times that very competent doctors usually rush people through treatment because of that. So while that does happen, the person will at the very least get a baseline for treatment.

Now, if they need to get treatment on their own—for example, a person wakes up at 2:00 a.m., and they’re in so much pain, because the pain medication is not working, and they had a setback at physical therapy—my answer is always, Just go to the emergency room, we’ll deal with it later. 

But in a non-emergency setting, if the person says, Well, I just don’t like this doctor, I’m going to go on my own to another doctor—that’s called unauthorized treatment, and it doesn’t mean that you didn’t need it, it just means that it wasn’t directed by them. That’s something, again, that we have to deal with as the case goes on.

Marc Lopez
So interesting. Enrique, in your opinion, is Indiana’s worker’s compensation scheme one of the better ones in the country? Or one of the worst, or middle of the road?

Enrique Flores
Well, I can tell you that we are ranked probably toward the bottom—usually between the 46th and 48th place out of 50 states. It’s something that we keep in mind when we talk about this, right, or when I meet with my clients or we’re going to tell them that they need to follow their treatment and not be late and all of this, because there’s so little that we can get for them. We’re trying to stretch it, and we need to be able to claim what we can to get as much as what the act provides. As I told you before, the employer gets a lot of rights out of this. The main thing out of the Worker’s Compensation Act is that they wanted to provide a treatment for an injured individual and benefits for an injured individual without having to bankrupt these companies. But at the same time, it is very heavily in favor of the employer. So yeah, it’s one of those where it’s hard on the employees—especially when you have to have the conversation that there’s no pain and suffering in worker’s compensation in Indiana.

Marc Lopez
No, I hear this countless times, and you hear stories of two people injured—very similar ways, one person in Illinois, one person in Indiana. Illinois treats them completely differently than Indiana, and Indiana’s treating people much worse. When I can hear you talk, you have to fight for everything here. That’s what I understand, and I know you’re good at that. So I appreciate you taking care of my referrals, and it means a lot.

Enrique, you gave us three things here, follow doctor’s orders, let the employer know that you’re injured, and if you have concerns, talk about them with your attorney. Any other parting advice for anybody listening to this?

Enrique Flores
Just be careful, and of course, there’s only so much you can do—especially when you’re working with others—but if you are in a situation where you are injured, just do anything you can to help yourself. I’ve had clients that have gotten kicked out of a doctor’s office, because they got in a fight with a doctor instead of coming to me and talking about it and making sure that we fix it. So just help yourself. I know that it is extremely difficult, especially for a lot of these workers that are used to providing for their families, and all of a sudden, they’re strapped or there’s no money coming in. Just keep a cool head as much as you can, and call us with questions. That’s my main advice.

Marc Lopez
Thank you so much for spending some time this afternoon talking with me, man. I appreciate it.

Enrique Flores
Thank you, Marc, and thank you for providing the forum for this. I feel people need it.

Marc Lopez
Absolutely. Hey—what’s the best way to get ahold of you? If anybody listening wants to give you a call?

Enrique Flores
Yeah, they can call me for both Spanish and English service at 317-900-2556.

Marc Lopez
You have a great day, buddy. Have a great one.

Enrique Flores
Thank you very much, Marc.

Marc Lopez
Absolutely, buddy.