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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. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  2. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  3. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  4. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

  5. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

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