Second Injury Fund for Disabled Workers

The Second Injury Fund pays benefits to injured workers who exhaust the maximum benefits otherwise available under the Act, providing that the employee shows that they remain permanently totally disabled.
The Fund may award benefits at the applicable rate, payable at six-week intervals for a total of 150 weeks. If the employee remains permanently totally disabled after 150 weeks, he or she may reapply to the Fund. The Board may award benefits for successive periods not to exceed 150 weeks each. The Board conducts hearings held to determine eligibility for benefit extensions. Ind. Code §§22-3-3-13 (h)-(j).

The Second Injury Fund pays for replacement or repair of prosthetics initially provided by the employer for work injuries. The repair or replacement must be due to medical necessity or normal wear and tear, but not in cases where the device has been abused by the injured worker. The prosthetic device must be necessary as a result of a compensable injury causing amputation of a body part, enucleation of an eye, or the loss of natural teeth. Replacement devices may be provided through the fund regardless of when the injury occurred, provided that the worker can show that the original device was provided because of a compensable injury. Ind. Code §22-3-3-4 (e).

All worker’s compensation insurance carriers and self-insured employers doing business in Indiana are required to contribute to the Second Injury Fund an assessment based on premium amounts and indemnity payments in the calendar year preceding assessments. The Board makes an assessment whenever fund disbursements (the total amount of all worker’s compensation paid to injured employees or their beneficiaries, exclusive of medical benefits) exceed 135% of previous disbursements. Ind. Code §§22-3-3-13 (c)-(g) and (k).

(a) As used in this section, “Board” refers to the Worker’s Compensation Board created under I.C. §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 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 applications under section 4(e) [I.C.22-3-3-4(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 November 1 in any year to:

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 each employer carrying the employer’s own risk; stating that an assessment is necessary. Not later than January 31 of the following year, each entity identified in subdivisions (1) and (2) shall send to the Board a statement of total paid losses and premiums (as defined in subsection (d)(4) paid by employers during the previous calendar year. The Board may conduct an assessment under this subsection not more than one (1) time annually. The total amount of the assessment 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 the I.C.22-3-2 through I.C.22-3-6 for the calendar year next preceding the due date of such payment. The Board shall assess a penalty in the amount of ten percent (10%) of the amount owed if payment is not made under this section within thirty (30) days from the date set by the Board. If the amount to the credit of the second injury fund on or before November 1 of any year exceeds one hundred thirty-five percent (135%) of the previous year’s disbursements, the assessment allowed under this subsection shall not be assessed or collected during the ensuring year. But when on or before November 1 of any year the amount to the credit of the fund is less than one hundred thirty-five percent (135%) of the previous year’s disbursements, 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 I.C.22-3-2 through I.C. 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 (.25%) above the amount recommended by the study performed before the assessment.

(d) The Board shall assess all employers for the liabilities, including administrative expenses, of the second injury fund. The assessment also must provide for the repayment of all loans made to the second injury fund for the purpose of paying valid claims. The following applies to assessments under this subsection:

(1) The portion of the total amount that must be collected from self-insured employers equals:

(A) The total amount of the assessment as determined by the Board; multiplied by
(B) The quotient of:
(i) The total paid losses on behalf of all self-insured employers during the preceding calendar.
(ii) The total paid losses on behalf of all self-insured employers and insured employers during the preceding calendar year.
(2) The portion of the total amount that must be collected from insured employers equals:
(A) The total amount of the assessment as determined by the Board; multiplied by
(B) The quotient of:
(i) The total paid losses on behalf of all insured employers during the preceding calendar year; divided by
(ii) The total paid losses on behalf of all self-insured employers and insured employers during the preceding calendar year.

(3) The total amount of insured employer assessments under subdivision (2) must be collected by the insured employers’ worker’s compensation insurers. The amount of employer assessments each insurer shall collect equals:
(A) The total amount of assessments allocated to insured employers under subdivision (2); multiplied by
(B) The quotient of:
(i) The worker’s compensation premiums paid by employers to the carrier during the preceding calendar year; divided by
(ii) The worker’s compensation premiums paid by employers to all carriers during the preceding year.

For purposes of the computation made under subdivision (3), “premium” means the direct written premium.

The amount of the assessment for each self-insured employer equals:
(A)The total amount of assessments allocated to self-insured employers under subdivisions (1); multiplied by
(B) The quotient of:
(i) The paid losses attributable to the self-insured employer during the preceding calendar year; divided by
(ii) Paid losses attributable to all self-insured employers during the preceding calendar year.
An employer that has ceased to be a self-insurer continues to be liable for prorated assessments based on paid losses made by the employer in the preceding calendar year during the period that the employer was self-insured.

(e) The Board may employ a qualified employee or enter into a contract with an actuary or another qualified firm that has experience in calculating worker’s compensation liabilities. Not later than December 1 of each year, the actuary or other qualified firm shall calculate the recommended funding level of the fund 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 I. The Board shall pay the costs of the contract under this subsection with money in the fund.

(f) An assessment collected under subsection I 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 I 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 statues applicable to the nonpayment of premiums.

(g) 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 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.

(h) If an employee who is entitled to compensation under I.C.22-3-2 through I.C.22-3-6 either:
(1) Exhausts the maximum benefits under section 22 [I.C.22-3-3-22] of this chapter without having received the full amount of award granted to the employee under section 10 [I.C. 22-3-3-10] 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 (i).

(i) 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;
(2) That the employee is unable to support the employee in any gainful employee, not associated with rehabilitative or vocational therapy.

(j) 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 [I.C.22-3-3-16] of this chapter does not apply to compensation awarded from the second injury fund under this section.

(k) 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.

The industrial Board of Indiana, in order to carry out the intent and purpose of the second injury fund, adopts the following:

All employers and insurance carriers, subject to the provisions of the second injury fund, shall keep an accurate record of all compensation claims paid to inured employees or their depends under the Act (I.C.22-3-2-I.C.22-3-6); that the Board may examine under oath or otherwise, any person, firm or corporation, concerning the records of said compensation payments; that the Board may regulate the method and manner and provide the necessary forms whereby payments are made to said fund.

All claims made under the second injury fund will be determined like other compensation claims, as provided for in I.C.22-3-4-5.

Awards for the payment of compensation from the second injury fund shall set forth that no payments out of the second injury fund will be made to a claimant until the full amount due from the employer for whom he was working when he received his second injury, shall have been fully paid; said payments of compensation from the second injury fund shall commence on the filing date of claimant’s application for said benefits; all compensation payments paid out of the second injury fund, shall be ordered payable every six (6) weeks. Under no circumstances will the Board consider any request for a lump sum settlement. Any award made under the provisions of the second injury fund shall be subject to review, modification or cancellation, as provided for under the provisions of the Indiana Workman’s Compensation Law.

The second injury fund shall be under the direction and supervision of an administrator named and appointed by the full industrial Board. The administrator shall be charged with the duty of administering said second injury fund as herein before prescribed and, additionally, said administrator shall personally review each application filed with the Board request benefits from the second injury fund. In any case where the administrator of the second injury fund determines that there is a question of the legal entitlement to any benefits from the second injury fund the administrator shall refer a copy of said application to the office of the attorney general of Indiana along with a letter or memorandum indicating wherein said administrator feels a question of legal entitlement exists and before said application is set for hearing before a single member of the industrial Board of Indiana the attorney general shall have the right to defend said fund against said application for allowance of second injury fund benefits. The attorney general of Indiana may designate which duly appointed deputy shall appear for said defense.

(e) Regardless of when it occurs, where a compensable injury results in the amputation of a body part, the enucleation of an eye, or the loss of natural teeth, the employer shall furnish an appropriate artificial member, braces, and prosthodontics. The cost of repairs or replacements for the artifical member, braces, or prosthodontics that result from a compensable injury pursuant to a prior award and are required due to either medical necessity or normal wear and tear, determined according to the employee’s individual use, but not abuse, of the artifical member, braces or prosthodontics, shall be paid from the second injury fund upon order or award of the worker’s compensation board. The employee is not required to meet any other requirement for admission to the second injury fund.

(f) If an accident arising out of and in the course of employment after June 30, 1997, results in the loss of or damage to an artifical member, a brace, an implant, eyeglasses, prosthodontics, or other medically prescribed divided, the employer shall repair the artifical member, brace, implant, eyeglasses, prosthodontics, or other medically prescribed device or furnish an identical or a reasonably equivalent replacement.

Linville v. Second Injury Fund, 664 N.E.2d 1178 (Ind. Ct. App. 1996).
Cincinnati Insurance Company on behalf of Jeffrey Struyf v. Second Injury Fund, 863 N.E.2d 1242 (Ind. Ct. App. 2007).
Kohlmeyer v. Second Injury Fund, 888 N.E.2d 281 (Ind. Ct. App. 2008).
Mayes v. Second Injury Fund, 888 N.E.2d 773 (Ind. 2008).
Munster Med Inn v. Sheila Banks, 913 N.E.2d 773 (Ind. Ct. App. 2009).