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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  1. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

  2. I pd for a bankruptcy years ago with Mr Stiles and just this week received a garnishment from my pay! He never filed it even though he told me he would! Don't let this guy practice law ever again!!!

  3. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  4. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

  5. Pass Legislation to require guilty defendants to pay for the costs of lab work, etc as part of court costs...

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