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Judges uphold workers’ comp claim for nurse

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The Indiana Court of Appeals has affirmed the Indiana Worker’s Compensation Board’s ruling in favor of a home health care registered nurse on her claim for workers' compensation. The judges rejected the company’s argument that the board’s decision was based on the defunct “positional risk doctrine.”

Kathleen Miecznikowski was visiting a patient at the patient’s home when she lost her footing and fell on the sidewalk, injuring her arm and hand. She filed an application for adjustment of claim with the board; a single hearing member denied the claim, but the full board reversed. It concluded that her injuries had arisen out of her employment with A Plus Home Health Care Inc. and that her fall “was a neutral risk and therefore compensable. There is no indication (Miecznikowski) had a personal condition that caused her to fall.”

In A Plus Home Health Care Incorporated v. Kathleen Miecznikowski, 93A02-1207-EX-558, A Plus contended that because the board concluded that Miecznikowski’s injuries arose from a neutral risk, the board’s conclusion is necessarily premised on the now-defunct positional risk doctrine described by the Indiana Supreme Court in Milledge v. The Oaks, 784 N.E.2d 926, 929 (Ind. 2003).

In that case, the justices imposed the positional risk doctrine to avoid placing claimants in the position of attempting to prove a negative – that the injury was not personal to the claimant. The Indiana General Assembly amended l.C. 23-3-2-2 in 2006 to say that the burden of proof is on the employee.

This amendment does not supersede the Supreme Court’s conclusion that neutral risks are compensable under the act, Judge Edward Najam wrote. Here, Miecznikowski presented evidence that her injuries weren’t the result of a mental illness or condition and therefore weren’t the result of a personal risk.

In light of the evidence, the judges agreed with the board’s conclusion that her fall was a neutral risk and therefore compensable.

“A Plus’s argument that this conclusion necessarily relies on the positional risk doctrine is incorrect. At all times, pursuant to the 2006 amendment to Indiana Code Section 23-3-2-2, Kathy bore the burden of proof on all elements of her claim. Kathy met her burden, unlike the claimant in Pavese (v. Cleaning Solutions, 894 N.E.2d 570, 576 (Ind. Ct. App. 2008)), when she testified that the cause of the fall was both not a personal risk and also was a neutral risk,” he wrote.

 

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  1. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  2. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  3. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  4. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  5. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

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