Second injuries
Sec. 13. (a) As used in this section, "board" refers to the worker's
compensation board created under IC 22-3-1-1.
(b) If an employee who from any cause, had lost, or lost the use
of, one (1) hand, one (1) arm, one (1) foot, one (1) leg, or one (1)
eye, and in a subsequent industrial accident becomes permanently
and totally disabled by reason of the loss, or loss of use of, another
such member or eye, the employer shall be liable only for the
compensation payable for such second injury. However, in addition
to such compensation and after the completion of the payment
therefor, the employee shall be paid the remainder of the
compensation that would be due for such total permanent disability
out of a special fund known as the second injury fund, and created in
the manner described in subsection (c).
(c) Whenever the board determines under the procedures set forth
in subsection (d) that an assessment is necessary to ensure that fund
beneficiaries, including applicants under section 4(e) of this chapter,
continue to receive compensation in a timely manner for a reasonable
prospective period, the board shall send notice not later than October
1 in any year to:
(1) all insurance carriers and other entities insuring or providing
coverage to employers who are or may be liable under this
article to pay compensation for personal injuries to or the death
of their employees under this article; and
(2) each employer carrying the employer's own risk;
stating that an assessment is necessary. After June 30, 1999, the
board may conduct an assessment under this subsection not more
than one (1) time annually. Every insurance carrier and other entity
insuring or providing coverage to employers who are or may be
liable under this article to pay compensation for personal injuries to
or death of their employees under this article and every employer
carrying the employer's own risk, shall, within thirty (30) days of the
board sending notice under this subsection, pay to the worker's
compensation board for the benefit of the fund an assessed amount
that may not exceed two and one-half percent (2.5%) of the total
amount of all worker's compensation paid to injured employees or
their beneficiaries under IC 22-3-2 through IC 22-3-6 for the calendar
year next preceding the due date of such payment. For the purposes
of calculating the assessment under this subsection, the board may
consider payments for temporary total disability, temporary partial
disability, permanent total impairment, permanent partial
impairment, or death of an employee. The board may not consider
payments for medical benefits in calculating an assessment under this
subsection. If the amount to the credit of the second injury fund on
or before October 1 of any year exceeds one million dollars
($1,000,000), the assessment allowed under this subsection shall not
be assessed or collected during the ensuing year. But when on or
before October 1 of any year the amount to the credit of the fund is
less than one million dollars ($1,000,000), the payments of not more
than two and one-half percent (2.5%) of the total amount of all
worker's compensation paid to injured employees or their
beneficiaries under IC 22-3-2 through IC 22-3-6 for the calendar year
next preceding that date shall be resumed and paid into the fund. The
board may not use an assessment rate greater than twenty-five
hundredths of one percent (0.25%) above the amount recommended
by the study performed before the assessment.
(d) The board shall enter into a contract with an actuary or another
qualified firm that has experience in calculating worker's
compensation liabilities. Not later than September 1 of each year, the
actuary or other qualified firm shall calculate the recommended
funding level of the fund based on the previous year's claims and
inform the board of the results of the calculation. If the amount to the
credit of the fund is less than the amount required under subsection
(c), the board may conduct an assessment under subsection (c). The
board shall pay the costs of the contract under this subsection with
money in the fund.
(e) An assessment collected under subsection (c) on an employer
who is not self-insured must be assessed through a surcharge based
on the employer's premium. An assessment collected under
subsection (c) does not constitute an element of loss, but for the
purpose of collection shall be treated as a separate cost imposed upon
insured employers. A premium surcharge under this subsection must
be collected at the same time and in the same manner in which the
premium for coverage is collected, and must be shown as a separate
amount on a premium statement. A premium surcharge under this
subsection must be excluded from the definition of premium for all
purposes, including the computation of insurance producer
commissions or premium taxes. However, an insurer may cancel a
worker's compensation policy for nonpayment of the premium
surcharge. A cancellation under this subsection must be carried out
under the statutes applicable to the nonpayment of premiums.
(f) The sums shall be paid by the board to the treasurer of state, to
be deposited in a special account known as the second injury fund.
The funds are not a part of the general fund of the state. Any balance
remaining in the account at the end of any fiscal year shall not revert
to the general fund. The funds shall be used only for the payment of
awards of compensation and expense of medical examinations or
treatment made and ordered by the board and chargeable against the
fund pursuant to this section, and shall be paid for that purpose by
the treasurer of state upon award or order of the board.
(g) If an employee who is entitled to compensation under
IC 22-3-2 through IC 22-3-6 either:
(1) exhausts the maximum benefits under section 22 of this
chapter without having received the full amount of award
granted to the employee under section 10 of this chapter; or
(2) exhausts the employee's benefits under section 10 of this
chapter;
then such employee may apply to the board, who may award the
employee compensation from the second injury fund established by
this section, as follows under subsection (h).
(h) An employee who has exhausted the employee's maximum
benefits under section 10 of this chapter may be awarded additional
compensation equal to sixty-six and two-thirds percent (66 2/3%) of
the employee's average weekly wage at the time of the employee's
injury, not to exceed the maximum then applicable under section 22
of this chapter, for a period of not to exceed one hundred fifty (150)
weeks upon competent evidence sufficient to establish:
(1) that the employee is totally and permanently disabled from
causes and conditions of which there are or have been objective
conditions and symptoms proven that are not within the
physical or mental control of the employee; and
(2) that the employee is unable to support the employee in any
gainful employment, not associated with rehabilitative or
vocational therapy.
(i) The additional award may be renewed during the employee's
total and permanent disability after appropriate hearings by the board
for successive periods not to exceed one hundred fifty (150) weeks
each. The provisions of this section apply only to injuries occurring
subsequent to April 1, 1950, for which awards have been or are in the
future made by the board under section 10 of this chapter. Section 16
of this chapter does not apply to compensation awarded from the
second injury fund under this section.
(j) All insurance carriers subject to an assessment under this
section are required to provide to the board:
(1) not later than January 31 each calendar year; and
(2) not later than thirty (30) days after a change occurs;
the name, address, and electronic mail address of a representative
authorized to receive the notice of an assessment.
(Formerly: Acts 1929, c.172, s.33a; Acts 1949, c.250, s.1; Acts 1957,
c.298, s.2; Acts 1963, c.387, s.8; Acts 1969, c.94, s.2; Acts 1974,
P.L.108, SEC.11.) As amended by Acts 1979, P.L.227, SEC.3; Acts
1980, P.L.22, SEC.14; P.L.28-1988, SEC.28; P.L.170-1991, SEC.7;
P.L.235-1999, SEC.3; P.L.202-2001, SEC.5; P.L.178-2003, SEC.9.
Last modified: May 27, 2006