Definitions; exemptions
Sec. 1. 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, or corporation or the receiver or trustee of
the same, using the services of another for pay. A parent corporation
and its subsidiaries shall each be considered joint employers of the
corporation's, 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.
(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 is an independent contractor in the construction
trades and does not make the election provided under this
subdivision, the owner must obtain an affidavit 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 is an independent contractor in the
construction trades and does not make the election provided
under this subdivision, the partner must obtain an affidavit 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 in the construction
trades 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 1057, 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.
(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 20-33-3-35, 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 medical services, treatment, or supplies to an employee
under IC 22-3-2 through IC 22-3-6.
(j) "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 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.
(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.
Last modified: May 27, 2006