Bill Text: IN HB1128 | 2010 | Regular Session | Introduced
Bill Title: Occupational disease and asbestos actions.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2010-01-07 - First reading: referred to Committee on Labor and Employment [HB1128 Detail]
Download: Indiana-2010-HB1128-Introduced.html
Citations Affected: IC 22-3-7-9; IC 34-20-3-2.
Synopsis: Occupational disease and asbestos actions. Provides a
statute of limitations for causes of action for occupational disease.
Provides for a product liability action against persons who mined or
sold commercial products containing or using asbestos. (Current law
provides for a product liability action against persons who mined and
sold commercial asbestos.) Provides for a one year period, ending July
1, 2011, to file an otherwise time-barred cause of action for: (1)
occupational disease; (2) personal injury, disability, disease, or death
resulting from exposure to asbestos; or (3) property damage resulting
from asbestos.
Effective: July 1, 2010.
January 7, 2010, read first time and referred to Committee on Labor and Employment.
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A BILL FOR AN ACT to amend the Indiana Code concerning labor
and safety.
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 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) As used in this chapter, "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. For purposes of this chapter,
the following apply:
(1) Any reference to an employee who has suffered disablement,
when the employee is dead, also includes the employee's legal
representative, dependents, and other persons to whom
compensation may be payable.
(2) An owner of a sole proprietorship may elect to include the
owner as an employee under this chapter 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 this
chapter unless 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 section 34.5 of this chapter.
(3) A partner in a partnership may elect to include the partner as
an employee under this chapter 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 this chapter 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 section 34.5 of this chapter.
(4) Real estate professionals are not employees under this chapter
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.
(5) A person is an independent contractor in the construction trades and not an employee under this chapter if the person is an independent contractor under the guidelines of the United States Internal Revenue Service.
(6) 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 376, to a motor carrier is not an employee of the motor carrier for purposes of this chapter. 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.
(7) 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 under section 2.5 of this chapter.
(8) 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 this chapter.
(9) An officer of a corporation who is the sole officer of the corporation is an employee of the corporation under this chapter. An officer of a corporation who is the sole officer of the corporation may elect not to be an employee of the corporation under this chapter. If an officer makes this election, the officer must serve written notice of the election on the corporation's insurance carrier and the board. An officer of a corporation who is the sole officer of the corporation may not be considered to be excluded as an employee under this chapter until the notice is received by the insurance carrier and the board.
(c) As used in this chapter, "minor" means an individual who has not reached seventeen (17) years of age. For purposes of this chapter, the following apply:
(1) A minor employee shall be considered as being of full age.
(2) If the employee is a minor who, at the time of the last exposure, is employed, required, suffered, or permitted to work in violation of the child labor laws of this state, the amount of compensation and death benefits, as provided in this chapter, 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 disability or death of the minor, and the employer shall be wholly 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 last exposure is employed, suffered, or permitted to work at any occupation which is not prohibited by law,
(3) The rights and remedies granted to a minor under this chapter on account of disease shall exclude all rights and remedies of the minor, the minor's parents, the minor's personal representatives, dependents, or next of kin at common law, statutory or otherwise, on account of any disease.
(d) This chapter does not apply to:
(1) casual laborers as defined in subsection (b);
(2) farm or agricultural employees;
(3) household employees;
(4) railroad employees engaged in train service as engineers, firemen, conductors, brakemen, flagmen, baggagemen, or foremen in charge of yard engines and helpers assigned thereto;
(5) employers
(6) employees or their employers
(e) As used in this chapter, "disablement" means the event of becoming disabled from earning full wages at the work in which the employee was engaged when last exposed to the hazards of the occupational disease by the employer from whom the employee claims compensation or equal wages in other suitable employment, and
"disability" means the state of being so incapacitated.
(f) For the purposes of this chapter, no compensation shall be
payable for or on account of any occupational diseases unless
disablement, as defined in subsection (e), occurs within two (2) years
after the last day of the last exposure to the hazards of the disease
except for the following:
(1) In all cases of occupational diseases caused by the inhalation
of silica dust or coal dust, no compensation shall be payable
unless disablement, as defined in subsection (e), occurs within
three (3) years after the last day of the last exposure to the hazards
of the disease.
(2) in all cases of occupational disease, caused by the exposure to
radiation, no compensation shall be payable unless a claim is
filed with the worker's compensation board not later than two
(2) years after the later of:
(1) disablement, as defined in subsection (e); occurs within two
(2) years from or
(2) the date on which the employee had knowledge of the nature
diagnosis of the employee's occupational disease or, by exercise
of reasonable diligence, should have known of the existence of
such disease and its causal relationship to the employee's
employment.
(3) In all cases of occupational diseases caused by the inhalation
of asbestos dust, no compensation shall be payable unless
disablement, as defined in subsection (e), occurs within three (3)
years after the last day of the last exposure to the hazards of the
disease if the last day of the last exposure was before July 1, 1985.
(4) In all cases of occupational disease caused by the inhalation
of asbestos dust in which the last date of the last exposure occurs
on or after July 1, 1985, and before July 1, 1988, no compensation
shall be payable unless disablement, as defined in subsection (e),
occurs within twenty (20) years after the last day of the last
exposure.
(5) In all cases of occupational disease caused by the inhalation
of asbestos dust in which the last date of the last exposure occurs
on or after July 1, 1988, no compensation shall be payable unless
disablement (as defined in subsection (e)) occurs within
thirty-five (35) years after the last day of the last exposure.
(g) For the purposes of this chapter, no compensation shall be
payable for or on account of death resulting from any occupational
disease unless death occurs within two (2) years after the date of
disablement. However, this subsection does not bar compensation for
death:
(1) where death occurs during the pendency of a claim filed by an
employee within two (2) years after the date of disablement and
which claim has not resulted in a decision or has resulted in a
decision which is in process of review or appeal; or
(2) where, by agreement filed or decision rendered, a
compensable period of disability has been fixed and death occurs
within two (2) years after the end of such fixed period, but in no
event later than three hundred (300) weeks after the date of
disablement.
in all cases of occupational disease in which:
(1) disablement occurred before July 1, 2010; and
(2) an action based on the disablement was barred on July 1,
2010, by a period of limitations or repose in effect before July
1, 2010;
the action may be commenced after June 30, 2010, and before July
1, 2011, notwithstanding any other law to the contrary.
(h) As used in this chapter, "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.
(i) As used in this chapter, "billing review standard" means the data
used by a billing review service to determine pecuniary liability.
(j) As used in this chapter, "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.
(k) As used in this chapter, "medical service provider" refers to a
person or an entity that provides medical services, treatment, or
supplies to an employee under this chapter.
(l) As used in this chapter, "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 this chapter 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.
(1) property damage resulting from asbestos; or
(2) personal injury, disability, disease, or death resulting from exposure to asbestos;
must be commenced within two (2) years after the cause of action accrues. The subsequent development of an additional asbestos related disease or injury is a new injury and is a separate cause of action.
(b) A product liability action for personal injury, disability, disease, or death resulting from exposure to asbestos accrues on the date when the injured person knows that the person has an asbestos related disease or injury.
(c) A product liability action for property damage accrues on the date when the injured person knows that the property damage has resulted from asbestos.
(d) This section applies only to product liability actions against:
(1) persons who mined
(2) funds that have, as a result of bankruptcy proceedings or to avoid bankruptcy proceedings, been created for the payment of asbestos related disease claims or asbestos related property damage claims.
(f) This section applies to all actions that accrue before, on, or after July 1, 2010, for:
(1) personal injury, disability, disease, or death resulting from
exposure to asbestos; or
(2) property damage resulting from asbestos.
(g) An action under this section that was barred on July 1, 2010,
by the period of limitations in section 1(b)(2) of this chapter may
be commenced after June 30, 2010, and before July 1, 2011.
