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Weighing all the risks in a workers' compensation case

August 14, 2013
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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.•

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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.
 

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  3. All these sites putting up all the crap they do making Brent Look like A Monster like he's not a good person . First off th fight actually started not because of Brent but because of one of his friends then when the fight popped off his friend ran like a coward which left Brent to fend for himself .It IS NOT a crime to defend yourself 3 of them and 1 of him . just so happened he was a better fighter. I'm Brent s wife so I know him personally and up close . He's a very caring kind loving man . He's not abusive in any way . He is a loving father and really shouldn't be where he is not for self defense . Now because of one of his stupid friends trying to show off and turning out to be nothing but a coward and leaving Brent to be jumped by 3 men not only is Brent suffering but Me his wife , his kids abd step kidshis mom and brother his family is left to live without him abd suffering in more ways then one . that man was and still is my smile ....he's the one real thing I've ever had in my life .....f@#@ You Lafayette court system . Learn to do your jobs right he maybe should have gotten that year for misdemeanor battery but that s it . not one person can stand to me and tell me if u we're in a fight facing 3 men and u just by yourself u wouldn't fight back that you wouldn't do everything u could to walk away to ur family ur kids That's what Brent is guilty of trying to defend himself against 3 men he wanted to go home tohisfamily worse then they did he just happened to be a better fighter and he got the best of th others . what would you do ? Stand there lay there and be stomped and beaten or would u give it everything u got and fight back ? I'd of done the same only I'm so smallid of probably shot or stabbed or picked up something to use as a weapon . if it was me or them I'd do everything I could to make sure I was going to live that I would make it hone to see my kids and husband . I Love You Brent Anthony Forever & Always .....Soul 1 baby

  4. Good points, although this man did have a dog in the legal fight as that it was his mother on trial ... and he a dependent. As for parking spaces, handicap spots for pregnant women sure makes sense to me ... er, I mean pregnant men or women. (Please, I meant to include pregnant men the first time, not Room 101 again, please not Room 101 again. I love BB)

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