ILNews

Court affirms worker's comp dismissal

Jennifer Nelson
January 1, 2007
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The Indiana Court of Appeals affirmed a Full Worker's Compensation Board of Indiana decision to dismiss a claim against a former employer, citing statutory conditions have been met to release the employer from any liability.

In William Pete Casper v. L.E. Isley & Sons, Inc., No. 93A02-0702-EX-179, Casper's wife, Janet, on behalf of William's estate, appealed the dismissal of the estate's claim against L.E. Isley for worker's compensation. Janet Casper argued the dismissal was premature.

William Casper worked for Isley for more than 40 years, until he was diagnosed with mesothelioma, which results from exposure to asbestos. On March 1, 2005, William filed an application for adjustment of claim with the board, and on March 7, he filed suit in Marion Superior Court against multiple defendants he alleged were responsible for his exposure. William died Oct. 26, 2006.

His estate settled with some defendants in November and filed a motion for a finding of bad faith with the compensation board on the part of Isley and its insurance. Isley filed a motion to dismiss the claim.

During a single-member hearing in May 2006, the member found the estate had settled with some defendants for an unknown amount, but the amount is in excess of any potential liability Isley would have in this matter. The estate also has multiple claims it may be able to assert in the future against defendants now in bankruptcy court. Isley never paid William or the estate compensation as a result of the alleged disease caused by Isley.

After reviewing these facts, a hearing judge issued an order to dismiss the claim against Isley. The full board affirmed the single hearing member's decision.

The Court of Appeals ruled that although the Occupational Disease Act in Indiana Code 22-3-7-36(b) allows employees to seek worker's compensation benefits and recovery from third parties, it generally prohibits an employee from "double recovery."

The statute states if an employee hasn't received compensation or medical services, the employee "shall procure a judgment against such other party" for disablement or death from an occupational disease, and if a judgment is paid or settlement made, then the "employer or such employer's occupational disease insurance carrier shall have no liability for payment of compensation."

The estate has settled with some third party defendants for an amount of money higher than any potential liability Isley would have. Statutory conditions have been met to release Isley of any liability for payment of compensation and the board's dismissal of the estate's claim was not premature, the court found.
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  1. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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