ILNews

Amendment trumps high court ruling

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Addressing the issue for the first time since the legislature amended the state's Workers' Compensation Act in 2006, the Indiana Court of Appeals ruled today the amendment overrules an earlier Indiana Supreme Court decision that placed the burden of proof on employers in cases involving "neutral risk" incidents.

The Indiana Supreme Court adopted the "positional risk doctrine" in its ruling in Milledge v. The Oaks, 784 N.E.2d 926 (Ind. 2003), which shifted the burden of proof from employees to employers when the employee has shown his or her injury occurred in the course of employment and was the result of neutral risk - risks neither distinctly employment nor distinctly personal in character. The 2006 amendment to Indiana Code Section 22-3-2-2(a) places the burden of proof on employees throughout workers' compensation proceedings.

In Bridget Pavese v. Cleaning Solutions, No. 93A02-0803-EX-284, Bridget Pavese challenged the 2006 amendment as unconstitutional as applied to her because it places on her the burden of proving that her injury while employed with Cleaning Solutions wasn't the result of a personal health condition.

Pavese was found unconscious on the floor by co-workers and had suffered a head injury. Doctors were unable to determine whether a medical condition caused Pavese to lose consciousness or if she slipped and fell, and Pavese was unable to remember how she fell.

The full Workers' Compensation Board affirmed the single hearing member's decision to deny Pavese benefits under the Workers' Compensation Act for her medical care.

The 2006 amendment is constitutional as it was the legislature's right to clarify it is employees who maintain the burden of proof throughout workers' compensation proceedings, wrote Judge Nancy Vaidik. The amendment also effectively overrules Milledge's 2003 positional risk doctrine. Nothing in the Supreme Court's ruling indicates the doctrine was constitutionally mandated, wrote the judge.

Pavese failed to meet her burden of proof that her injury arose out of her employment and not because of a personal event, ruled the appellate court. Pavese presented the hearing member with two possibilities for her injury - a medical condition caused her to blackout and fall to the floor or that she slipped on the floor.

"Although we sympathize with the position Pavese is in, the legislature has made a policy decision to keep the burden of proof on employees," wrote Judge Vaidik.

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

  5. I have no doubt that the ADA and related laws provide that many disabilities must be addressed. The question, however, is "by whom?" Many people get dealt bad cards by life. Some are deaf. Some are blind. Some are crippled. Why is it the business of the state to "collectivize" these problems and to force those who are NOT so afflicted to pay for those who are? The fact that this litigant was a mere spectator and not a party is chilling. What happens when somebody who speaks only East Bazurkistanish wants a translator so that he can "understand" the proceedings in a case in which he has NO interest? Do I and all other taxpayers have to cough up? It would seem so. ADA should be amended to provide a simple rule: "Your handicap, YOUR problem". This would apply particularly to handicapped parking spaces, where it seems that if the "handicap" is an ingrown toenail, the government comes rushing in to assist the poor downtrodden victim. I would grant wounded vets (IED victims come to mind in particular) a pass on this.. but others? Nope.

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