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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

ADVERTISEMENT