DTCI Column Indiana Lawyer May 24-June 6, 2000 The Statute of ...

DTCI Column Indiana Lawyer May 24-June 6, 2000

The Statute of Limitations and the Indiana Workers' Compensation Act: When is a Deadline Really a Deadline?

By Brian L. England

In law there are few rules which do not have exceptions. This is especially true when it comes to defenses to legal claims. The Indiana courts have carved so many exceptions into the Indiana Tort Claims Notice Act, for example, that it has lost much of its significance as a bar to claims. In the area of workers' compensation, however, the deadline for filing an initial claim appears to remain an absolute prerequisite for maintaining an action. Whether that remains true in the current legal climate, however, remains to be seen.

Indiana Code 22-2-3-3 provides that a claim for compensation is forever barred unless filed with the Workers' Compensation Board within two years after the occurrence of the accident, or if death results therefrom, the date of death. An initial claim for benefits is to be distinguished from a claim for a modification of an existing award, either by agreement or by adjudication. Modification claims are governed by a different provision, I.C. 22-2-3-27(c). As discussed below, the two provisions are treated very differently.

With regard to an initial filing for a workers' compensation claim, I.C. 22-2-3-3 has been interpreted by the courts to be an absolute deadline which if not met will preclude any consideration of the claim. Period. Unlike other limitations statutes, such as that for negligence claims in general or for tort claims against the state or municipalities, the Indiana Court of Appeals has held that the requirements of I.C. 22-2-3-3 cannot be waived or be extended through estoppel, or even fraud. Wawrinchak v. United States Steel Corp., 266 N.E.2d 395 (Ind.Ct.App 1971)

The Indiana Court of Appeals in Wawrinchak held that the statute of limitations for an initial filing (today's I.C. 22-2-3-3) is a "non-claim statute" or a "statute of creation." The court explained that the filing deadline contained in this statute cannot be waived by the parties or lengthened by the Workers Compensation Board or any court under any circumstances. The court reasoned that this deadline is jurisdictional in nature and unless it is met the Board simply has no jurisdiction to consider factors which might otherwise excuse compliance (such as waiver, estoppel or even fraud).

Some commentators have criticized this ruling for its perceived harsh result. But the decision's defenders have countered that if someone was truly defrauded into not filing a claim, they would have a separate tort cause of action for damages in a court of general jurisdiction.

The Indiana Supreme Court in subsequent decisions has cast some doubt upon whether absolute compliance with the deadline for an initial filing will continue to be required in order to maintain a workers' compensation claim. In Gayheart v. Newnam Foundry Company, Inc., 393 N.E.2d 163 (Ind. 1979), the Indiana Supreme Court held that the limitations provision applicable to a claim for a modification of an existing award (today's I.C. 22-2-3-27[c]) is treated differently and does allow the Board to consider factors which might render an untimely filing excusable. The court reasoned that a claim for modification of an existing award is a different kind of claim. Since there was already an award, the Workers Compensation Board already has jurisdiction at the time the claim for additional benefits is filed. Since the Act provides that jurisdiction, once established, is continuing, there is no reason why the Board should not be allowed to consider evidence as to why the claimant should not be excused from strict adherence to the filing deadline.

Although the Gayheart decision was premised upon factors peculiar to a claim for a

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modification of an existing award, the plaintiff's bar has argued that the decision also applies to claims for an original award, overruling the decision in Wawrinchak. Alternatively, they argue that the decision signals that the Indiana Supreme Court will in the future change the rule regarding the filing deadline for an initial claim.

It has now been twenty years since the Gayheart decision, and there has yet to be a decision changing the absolute deadline for filing an initial claim provided by I.C. 22-2-3-3. The Indiana Supreme Court last addressed the statute of limitations issue in the case of Cox v. American Aggregates Corp., 684 N.E.2d 193 (Ind. 1997). In that case, the court discussed the issue, but then decided the claim before it on non-statute of limitations grounds and hinted that clarification would probably need to be made in the future

As the law stands now, the filing deadline for an initial worker's compensation claim provided by I.C. 22-2-3-3 must be met or the claim is barred. That will remain the case unless or until the Wawrinchak decision is overruled or modified. While it is not possible to predict with certainty how the Indiana Supreme Court will rule in the future, there have been recent signs that the court is interested in revisiting the effect of particular statutes of limitation. See e.g. Martin v. Richey, 711 N.E.2d 1273 (Ind. 1999) and Dusen v. Stotts, 712 N.E.2d 491(Ind. 1999)(both holding occurrence-based statute of limitations of medical malpractice statute is unconstitutional as applied to a failure to diagnose cancer). See also Indiana Farmers Mutual Insurance Company v. Richie, 707 N.E.2d 992 (Ind. 1999)(holding that failure to open a decedent's estate within two-year statute of limitations claim did not preclude wrongful death action).

In light of this trend, it is possible that the rule regarding strict adherence to the initial filing deadline might be interpreted as more forgiving to late filers. But forned, a deadline really is a deadline. Mr. England is a partner at the Fort Wayne firm of Hunt Suedhoff, L.L.P.

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