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. This is ridiculous. Most JDs not practicing law don't know squat to justify calling themselves a lawyer. Maybe they should try visiting the inside of a courtroom before they go around calling themselves lawyers. This kind of promotional BS just increases the volume of people with JDs that are underqualified thereby dragging all the rest of us down likewise.

  2. I think it is safe to say that those Hoosier's with the most confidence in the Indiana judicial system are those Hoosier's who have never had the displeasure of dealing with the Hoosier court system.

  3. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  4. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  5. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.