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. The fee increase would be livable except for the 11% increase in spending at the Disciplinary Commission. The Commission should be focused on true public harm rather than going on witch hunts against lawyers who dare to criticize judges.

  2. Marijuana is safer than alcohol. AT the time the 1937 Marijuana Tax Act was enacted all major pharmaceutical companies in the US sold marijuana products. 11 Presidents of the US have smoked marijuana. Smoking it does not increase the likelihood that you will get lung cancer. There are numerous reports of canabis oil killing many kinds of incurable cancer. (See Rick Simpson's Oil on the internet or facebook).

  3. The US has 5% of the world's population and 25% of the world's prisoners. Far too many people are sentenced for far too many years in prison. Many of the federal prisoners are sentenced for marijuana violations. Marijuana is safer than alcohol.

  4. My daughter was married less than a week and her new hubbys picture was on tv for drugs and now I havent't seen my granddaughters since st patricks day. when my daughter left her marriage from her childrens Father she lived with me with my grand daughters and that was ok but I called her on the new hubby who is in jail and said didn't want this around my grandkids not unreasonable request and I get shut out for her mistake

  5. From the perspective of a practicing attorney, it sounds like this masters degree in law for non-attorneys will be useless to anyone who gets it. "However, Ted Waggoner, chair of the ISBA’s Legal Education Conclave, sees the potential for the degree program to actually help attorneys do their jobs better. He pointed to his practice at Peterson Waggoner & Perkins LLP in Rochester and how some clients ask their attorneys to do work, such as filling out insurance forms, that they could do themselves. Waggoner believes the individuals with the legal master’s degrees could do the routine, mundane business thus freeing the lawyers to do the substantive legal work." That is simply insulting to suggest that someone with a masters degree would work in a role that is subpar to even an administrative assistant. Even someone with just a certificate or associate's degree in paralegal studies would be overqualified to sit around helping clients fill out forms. Anyone who has a business background that they think would be enhanced by having a legal background will just go to law school, or get an MBA (which typically includes a business law class that gives a generic, broad overview of legal concepts). No business-savvy person would ever seriously consider this ridiculous master of law for non-lawyers degree. It reeks of desperation. The only people I see getting it are the ones who did not get into law school, who see the degree as something to add to their transcript in hopes of getting into a JD program down the road.

ADVERTISEMENT