Addressing the issue for the first time since the legislature amended the state's Workers' Compensation Act in 2006, the Indiana Court of Appeals ruled today the amendment overrules an earlier Indiana Supreme Court decision that placed the burden of proof on employers in cases involving "neutral risk" incidents.
The Indiana Supreme Court adopted the "positional risk doctrine" in its ruling in Milledge v. The Oaks, 784 N.E.2d 926 (Ind. 2003), which shifted the burden of proof from employees to employers when the employee has shown his or her injury occurred in the course of employment and was the result of neutral risk – risks neither distinctly employment nor distinctly personal in character. The 2006 amendment to Indiana Code Section 22-3-2-2(a) places the burden of proof on employees throughout workers' compensation proceedings.
In Bridget Pavese v. Cleaning Solutions, No. 93A02-0803-EX-284, Bridget Pavese challenged the 2006 amendment as unconstitutional as applied to her because it places on her the burden of proving that her injury while employed with Cleaning Solutions wasn't the result of a personal health condition.
Pavese was found unconscious on the floor by co-workers and had suffered a head injury. Doctors were unable to determine whether a medical condition caused Pavese to lose consciousness or if she slipped and fell, and Pavese was unable to remember how she fell.
The full Workers' Compensation Board affirmed the single hearing member's decision to deny Pavese benefits under the Workers' Compensation Act for her medical care.
The 2006 amendment is constitutional as it was the legislature's right to clarify it is employees who maintain the burden of proof throughout workers' compensation proceedings, wrote Judge Nancy Vaidik. The amendment also effectively overrules Milledge's 2003 positional risk doctrine. Nothing in the Supreme Court's ruling indicates the doctrine was constitutionally mandated, wrote the judge.
Pavese failed to meet her burden of proof that her injury arose out of her employment and not because of a personal event, ruled the appellate court. Pavese presented the hearing member with two possibilities for her injury – a medical condition caused her to blackout and fall to the floor or that she slipped on the floor.
"Although we sympathize with the position Pavese is in, the legislature has made a policy decision to keep the burden of proof on employees," wrote Judge Vaidik.