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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. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  2. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  3. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  4. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

  5. Why do so many lawyers get away with lying in court, Jamie Yoak?

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