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. I think the cops are doing a great job locking up criminals. The Murder rates in the inner cities are skyrocketing and you think that too any people are being incarcerated. Maybe we need to lock up more of them. We have the ACLU, BLM, NAACP, Civil right Division of the DOJ, the innocent Project etc. We have court system with an appeal process that can go on for years, with attorneys supplied by the government. I'm confused as to how that translates into the idea that the defendants are not being represented properly. Maybe the attorneys need to do more Pro-Bono work

  2. We do not have 10% of our population (which would mean about 32 million) incarcerated. It's closer to 2%.

  3. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  4. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  5. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.