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COA: physical condition, injury equal one injury

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The Indiana Court of Appeals isn't convinced it needs to address the issue of pre-existing, non-work related physical conditions as it relates to a pizzeria cook's worker compensation case.

A ruling today in PS2, LLC, d/b/a Boston's Gourmet Pizza v. Adam Childers, No. 93A02-0902-EX-176, affirmed an order from the Indiana Worker's Compensation Board. A single administrative member last year had determined the injured cook was entitled to a secondary medical treatment relating to his injury and continued payment of temporary total disability benefits. On review, the full board in February affirmed that decision.

Childers was struck in the back by a freezer door in March 2007 and sustained an injury to his lower back. The record states that at the time of the accident, the 25-year-old was 6 feet tall, weighed 340 pounds, and smoked about 30 cigarettes a day. His treatment at first included medication and then physical therapy, but the latter was stopped because of worsening pain. A doctor recommended he lose weight in order to continue the treatment. However, Childers gained weight and surgery was explored as an option.

But the employer disagreed that it should have to pay for weight-reduction treatment and argued against the finding that Childers' pre-existing physical condition and inability to lose weight combined with a workplace injury produced a "single injury."

On appeal, Boston cited the state's Apportionment Statute at Indiana Code Section 22-3-3-12 that attempts to separate those workplace injuries from pre-existing impairments or disabilities that may or may not be related. Boston argues that the statute shows it would go against Indiana's public policy to hold an employer responsible for any medical condition resulting from another employment or cause. It recommended the Indiana Court of Appeals consider decisions from other jurisdictions - Louisiana, Florida, Wyoming, California, Oregon, Ohio, and South Dakota - that had considered the issue.

But the appellate judges found that Boston didn't show evidence that Childers had a weight problem impairing his health or requiring medical intervention prior to the workplace injury. After his injury, though, he was nearly immobile and that caused his weight to rise, the court wrote.

"We find Indiana law and the reasoning of the cases relied upon by the Board sufficient to our task, and to sustain the Board's award," Judge Carr Darden wrote for the unanimous panel.

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  1. This is easily remedied, and in a fashion that every church sacrificing incense for its 501c3 status and/or graveling for government grants should have no problem with ..... just add this statue, http://commons.wikimedia.org/wiki/File:Capitoline_she-wolf_Musei_Capitolini_MC1181.jpg entitled, "Jesus and Cousin John learn to suckle sustenance from the beloved Nanny State." Heckfire, the ACLU might even help move the statue in place then. And the art will certainly reflect our modern life, given the clergy's full-bellied willingness to accede to every whim of the new caesars. If any balk, just threaten to take away their government milk … they will quiet down straightaway, I assure you. Few, if any of them, are willing to cross the ruling elite as did the real J&J

  2. Tina has left the building.

  3. Is JLAP and its bevy of social "scientists" the cure to every ailment of the modern practitioner? I see no allegations as to substance abuse, but I sure see a judge who has seemingly let power go to her head and who lacks any appreciation for the rule of law. Seems that she needs help in her legal philosophy and judicial restraint, not some group encounter session to affirm she is OK, we are OK. Can’t we lawyers just engage in peer professionalism and even peer pressure anymore? Need we social workers to tell us it is wrong to violate due process? And if we conduct ourselves with the basic respect for the law shown by most social workers .... it that good enough in Indiana? If not, then how is JLAP to help this 2003 law school grad get what her law school evidently failed to teach her? (In addition .... rhetorical question … I have a theory that the LAP model serves as a conduit for governmental grace when the same strict application of the law visited upon the poor and the powerless just will not do. See in the records of this paper ... can the argument be made that many who save their licenses, reputations, salaries by calling upon that font of grace are receiving special treatment? Who tracks the application of said grace to assure that EP and DP standards are fully realized? Does the higher one climbs inside the Beltway bring greater showers of grace? Should such grace be the providence of the government, or the churches and NGO's? Why, we would not want to be found mixing the remnants of our abandoned faith with the highest loyalty to the secularist state, now would we?)

  4. Is JLAP and its bevy of social "scientists" the cure to every ailment of the modern practitioner? I see no allegations as to substance abuse, but I sure see a judge who has seemingly let power go to her head and who lacks any appreciation for the rule of law. Seems that she needs help in her legal philosophy and judicial restraint, not some group encounter session to affirm she is OK, we are OK. Cannot we lawyers not engage in peer professionalism and even pressure anymore? Need we social workers to tell us it is wrong to violate due process? And if we conduct ourselves with the basis respect for the law shown by most social workers .... it that good enough in Indiana?

  5. Judge Baker nails it: "Russell was in a place he did not have a right to be, to take an action he did not have a right to take. Russell neglected to leave that property even after engaging in a heated argument with and being struck with a broom handle by the property owner." AS is noted below ... sad to think that the next shoe to drop will be the thief suing the car owner. That is justice?

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