ILNews

Weighing all the risks in a workers' compensation case

August 14, 2013
Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

In A Plus Home Health Care Inc. v. Miecznikowski, the Indiana Court of Appeals confirmed that while the “positional risk doctrine” described by our Supreme Court in Milledge v. Oaks, 784 N.E.2d 926 (Ind. 2003), was defunct, the analysis of compensability of injuries under the neutral risk doctrine still applied. 983 N.E.2d 140, 143-144 (Ind. Ct. App. 2012) trans. denied, 985 N.E.2d 338 (Ind. 2013). When handling a workers’ compensation matter, practitioners need to be sure they conduct an appropriate analysis of all risk doctrines applicable to the claim.

das-sonia.jpg Das

In the context of establishing the essential elements of a workers’ compensation claim, the neutral risk doctrine applies when determining if an accident or injury arose out of employment. An injury arises out of employment when there is a causal relationship between the employment and the injury. Outlaw v. Erbrich Prods. Co., Inc., 742 N.E.2d 526, 530 (Ind. Ct. App. 2001); Ind. Mich. Power Co. v. Roush, 706 N.E.2d 1110, 1113 (Ind. Ct. App. 1999), trans. denied. The neutral risk doctrine divides risks incidental to employment into three categories: (1) risks distinctly associated with employment, (2) risks personal to the claimant, and (3) risks of neither distinctly employment nor distinctly personal in character. Milledge, 784 N.E.2d at 930; Kovatch v. A.M. Gen., 679 N.E.2d 940, 943 (Ind. Ct. App. 1997), trans. denied.; Roush, 706 N.E.2d at 1114 (citing 1 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law 41 (2002)). Risks of neither distinctly employment nor distinctly personal character are considered neutral risks. Risks that fall within categories numbered one and three are generally covered under the Indiana Workers’ Compensation Act. However risks personal to the claimant, those “caused by a preexisting illness or condition unrelated to employment,” such as idiopathic falls, are not compensable. Kovatch, 679 N.E.2d at 943.

While the decision in A Plus makes it clear that neutral risk injuries continue to be compensable in Indiana, workers’ compensation practitioners should not be too quick to categorize a risk as neutral. Neutral risks are those which are “unexplained,” in that there is no indication of causation. Id. Courts and practitioners should be mindful, as the Kovatch court noted, that very few falls are truly “unexplained.” An unexplained injury occurs where “nothing connects the injury with the victim privately; neither can it be shown that the injury had a specific employment origin.” Manous v. Manousogianakis, 824 N.E.2d 756, 764 (Ind. Ct. App. 2005) (quoting Arthur Larson & Lex Larson, Larson’s Workers’ Compensation Law § 8.03[3], at 8–64 (2004)) (emphasis added).

Kovatch noted that some jurisdictions have confused the difference between idiopathic and unexplained falls, leading to inconsistent results. 679 N.E.2d at 943 n4 (citing Nielsen v. Indus. Comm’n, 14 Wis.2d 112, 109 N.W.2d 483 (1961)). The risk of confusion may come where the claimant has no previously diagnosed condition but in the course of treating injuries sustained at work is found to have a personal condition, such as in the case where a claimant experiences a syncopal episode for the first time at work, and in the course of treatment is found to have a personal illness or condition that may have caused the episode. In this instance, Kovatch appears to categorize the risk as a personal risk. “As long as the evidence supports a reasonable inference that the fall was the result of a personal or idiopathic condition, the fall should not be categorized as unexplained.” Id. (citation omitted). See also Burdette v. Perlman-Rocque Co., 954 N.E.2d 925, 930 (Ind. Ct. App. 2011).

To prevent the risk of confusion over the difference between idiopathic and unexplained risks and the possibility of inconsistent results in Indiana, in cases where the parties disagree whether a risk is personal or neutral, practitioners may need to prepare to present facts and argument on both categories of risk to help the board decide compensability. To demonstrate an entitlement to worker’s compensation benefits, an employee must meet his or her burden of proof to demonstrate the injury arose from a neutral risk (or that the risk is distinctly associated with employment). Employers may argue that where both personal risk and neutral risk present possibilities for the injury, failure to prove a neutral risk should result in a denial of compensability. Pavese v. Cleaning Solutions, 894 N.E.2d 570, 578 (Ind. Ct. App. 2008) (finding the employee did not meet her burden of proof where evidence showed the accident may have been caused by either a personal risk or a neutral risk). Kovatch appears to suggest that the employer can defend the claim with evidence supporting an inference that the accident was caused by a personal condition.

If the board is persuaded that an injury arose from a personal risk, additional risk analysis may still be required. Under the increased risk doctrine, the effects of such an idiopathic fall may be compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in a moving vehicle. Burdette v. Perlman-Rocque Co., 954 N.E.2d 925, 931 (Ind. Ct. App. 2011) (citing Kovatch, 679 N.E.2d at 943-44). “An increased risk can occur in one of two ways: [The] employment contribution may be found either in placing the employee in a position which aggravates the effects of a fall due to the idiopathic condition, or in precipitating the effects of the condition by strain or trauma.” Kovatch, 679 N.E.2d at 943 n. 5 (citing Larson, § 12.00 at 3–416 (1996)). A risk is incidental to employment only “if the risk is not one to which the public at large is subjected.” A Plus, 983 N.E.2d at 144.

Thus, even if the risk is found to be personal to the claimant, practitioners should weigh all of the risks and may present argument as to whether the employment itself increases or contributes to the harm or risk suffered by an employee under the increased risk doctrine.•

__________

Sonia Das (sdas@lewiswagner.com) is a partner at Lewis Wagner, LLP in Indianapolis. She devotes a significant portion of her practice to representing employers before the Worker’s Compensation Board, and also defends claims on the Marion County Mass Tort docket, maintains an appellate practice and handles matters in insurance coverage litigation and general liability insurance defense.
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. 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!!!

  3. 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?

  4. 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?

  5. 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.

ADVERTISEMENT