Reid Murtaugh, Workers Comp Attorney; Lafayette, IN Withered Burns, LLP

Employment Relationships Not Covered

The following categories of employees are exempt from the Indiana Workers Compensation Act and cannot elect optional coverage: 1. Railroad Employees. Railroad engineers, firemen, conductors, brakemen, flagmen, baggage men, yard engine foremen and their helpers, are excluded from coverage by Ind. Code 22-3-2-2(b). These types of employment are covered by the Federal Employees Liability Act. 2. Employees in Federal Commerce. Ind. Code 22-3-2-19 provides that employees engaged in interstate or foreign commerce are not covered by Indiana worker's compensation if federal law has provided alternative compensation. For example, seamen are covered by the Jones Act, and Longshoremen are covered by the Longshoreman's and Harbor Workers Act. Currently, riverboat casino employees may be treated as seamen under the Jones Act. Riverboat casino employees who have been injured and are unsure of their rights should contact an attorney familiar with workers compensation and with the Jones Act. 3. Real Estate Professionals. Real estate professionals are not employees, and therefore are not covered under Indiana worker's compensation 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. Ind. Code 223-6-1(b)(6). 4. Independent Contractors. Independent contractors are not employees and; therefore, are not covered by the Act. The rules for determining who is an independent contractor for workers compensation purposes are similar to those applied by the Internal Revenue Service. The IRS weighs twenty factors in making such a determination. Per current case law, the Board considers some of these factors and others. Note that special procedures concerning independent contractors working in the building and construction trades are set out below. An injured worker who has been denied workers compensation on the basis that he was an independent contractor has the right to file an Application for Adjustment of Claim with the Workers Compensation Board. If the Board finds that the worker was an employee, the worker will be covered by the Workers Compensation Act. 5. Independent Contractors in the Building and Construction Trades. A person is an independent contractor in the construction trades and not covered as an

employee under the Act if, and only if, the person is an independent contractor under the guidelines of the Internal Revenue Service. Ind. Code 22-3-6-1(b)(7). These guidelines may be found in IRS Publication 937. 6. Athletes on Scholarship. A student athlete who accepted a "grant-in-aid" from a state university was held not to be an employee of the university. 7. Inmates of penal institutions. Inmates who work in a penal institution with or without pay have been held not to be employees. Inmates injured while incarcerated may have other rights and remedies under common law. 8. Volunteers. A volunteer who provides service without receiving any type of compensation is not an employee and, therefore, is not covered by the Act. However, if a person receives any compensation for work, whether cash or in-kind, that person may potentially be considered an employee. 9. Coaches. Coaches of youth sporting events hired by a nonprofit corporation are not held to be employees. Ind. Code 22-3-2-2(d).
Note: The material is copied from the Indiana Guide to Workers Compensation produced by the Governors office, which can be found free at http://www.in.gov/wcb/handbook/HANDBK2007.htm.