Legal Lines


Worker’s Compensation: Abrogation of Positional Risk Doctrine

By Christopher Cross
| Date: 12/17/2011

In 2003, the Indiana Supreme Court ensconced the Positional Risk Doctrine in the hallmark case of Milledge v. The Oaks. In Millege, the claimant began her usual shift and parked her car in the nursing home parking lot. After closing the door upon exiting the car she twisted her ankle. She proceeded to her job and completed the majority of her shift but the pain in her ankle prevented the claimant from finishing her duties.

Leaving work early, Milledge went to the emergency room of a local hospital where x-rays revealed a sprained ankle. However, her ankle still bothered her a week after the injury. Among other things she suffered swelling in her right leg, and her right foot was severely discolored. In addition, a large blister had developed on her ankle, which her husband lanced on two occasions. Milledge returned to the hospital where she was treated with antibiotics. After surgical procedures failed to control the infection that had developed, Milledge’s right leg was amputated below the knee. Subsequently, she was fitted with prosthesis.

The Supreme Court explained that risks incidental to employment fall into three categories; (1) risks directly associated with employment, (2) risks personal to the claimant, and (3) risks neither distinctly employment nor distinctly personal in character.

It reasoned that risks in category one are those we intuitively think of as work-connected, risks in category two are those caused by pre-existing illness or condition, unrelated to employment, and risks in category three are neutral risks. While risks in categories one and three are generally compensable under the Worker’s Compensation Act, risks personal to the claimant are not. The Court ruled that if there is a neutral risk, one that is neither distinctly related to the employment nor distinctly personal, then there is a rebuttable presumption that the injury arises out of the employment. The burden then shifted to the employer to demonstrate that the injury was actually the result of a cause personal to the claimant.

The Supreme Court’s ruling in Millege was somewhat of a shock to the legal community because it was contrary to all other familiar concepts of tort law wherein the initial burden of proof lay with the party alleging the tort and/or claim.

I. Amendment of Indiana Worker’s Compensation Act

In response to the Supreme Court’s ruling in Milledge, the Indiana General Assembly amended Indiana Worker’s Compensation Act (“Act”) to eliminate the burden shifting mechanism of the Positional Risk Doctrine. Indiana Code § 22-3-2-2 was then amended by adding the following two sentences to the end of subsection (a):

The burden of proof is on the employee. The proof by the employee of an element of a claim does not create a presumption in favor of the employee with regard to another element of the claim.

This language appears to be an explicit abrogation of the Milledge case. Prior to the amendment, subsection (a) read as follows:

Every employer and every employee, except as stated in IC 22-3-2 through IC 22- 3-6, shall comply with the provisions of IC 22-3-2 through IC 22-3-6 respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby.

Whereas the prior version did not specifically mete out the burden of proof to the employee, the amendment left no speculation of the employee’s burden in the establishment of the elements to affix entitlement to worker’s compensation benefits.

II. Decisions Interpreting the Amendment of the Act

A. Pavese v. Cleaning Solutions

The Court in Pavese was the first to interpret the amended language in the Act. Here, the claimant had been dust-mopping a floor in her place of employment and then put the dust-mop away. Empty-handed, she then walked back to retrieve a scrubbing machine. Approximately 10 to 15 minutes later, coworkers found her unconscious on the floor and called 911. The next thing the plaintiff remembered was waking-up in the ambulance. She did not remember the events leading up to the fall. However, she described the floor as concrete and slick because there was often oil and water on it. The plaintiff was taken to the emergency room and spent the night there. Her treating physician noted that she had fallen backwards causing a laceration on the back of her scalp and a concussion with retrograde amnesia. The treating physician ruled-out pre-existing conditions by noting she had no history of fainting, dizziness, or light-headed spells. Moreover, she had no history or evidence of seizures with a normal EKG in the emergency room. The plaintiff’s CT scan of the brain, except for the hematoma from the trauma, and her blood test was normal. The treating physician discharged Pavese with the diagnosis of syncopal episode, etiology uncertain with the impression that it was a sudden onset without warning that would suggest the possibility of cardiac rhythm disturbance.

The Indiana Worker’s Compensation Board ruled that the plaintiff did not meet her burden of proving that her injury arose out of her employment and that the accident occurred in the course of the employment. The Indiana Worker’s Compensation Board interpreted the newly-amended Indiana Code § 22-3-2-2(a) by requiring the claimant to prove causation thus discarding the Positional Risk Doctrine as previously mandated by Milledge.

The Appellate Court in Pavese upheld the Board’s interpretation of the statute. The Court noted that the Legislature had stepped-in to clarify that employees maintain the burden throughout the entire proceedings. This was the Legislature’s prerogative, as the right to worker’s compensation is a creature of statute. Because the plaintiff presented evidence that her fall could have been a syncopal episode or a slip-and-fall, she had not met her burden of proving the causal nexus between her injury and her employment.

B. PS2, LLC. v. Childers

The Childers case was somewhat tangential to the issue of positional risk. Here, a claimant sought worker’s compensation benefits following his work-related injury. The Worker’s Compensation Board determined that the plaintiff was entitled to precursor lap-band surgery to reduce his weight prior to a back fusion surgery for the work-related injury. The employer appealed the ruling of the Indiana Worker’s Compensation Board under various arguments. One argument presented by the employer was that the plaintiff alleged need for lap-band surgery is the result of a risk that was personal to him and therefore not the responsibility of the employer. The defendant directed the Childers Court to the ruling Pavese.

The Childers Court acknowledged that Pavese interpreted the amended Act to be an effective overruling of the Positional Risk Doctrine as established in Milledge. However, the Childers Court side-stepped the issue by pointing out that Board had made a factual finding that Childers had proven that his back injury arose out of and in the course of his employment. Its rationale was that the obesity was not a risk personal to the plaintiff because his weight had not been a disabling factor until the injury occurred. It opined that the Indiana Worker’s Compensation Board had made a factual finding, supported by the evidence of the record, and that the necessary medical treatment for his lower back injury included the precursor lap-band procedure. Accordingly, the Appellate Court did not have the authority to overturn the Board’s ruling when it was supported by the evidence.

While the Childers decision does not deal with a positional risk analysis, its dicta recognizes that Pavese interpreted the Indiana Code § 22-3-2-2 (a) as effectively overruling the Positional Risk Doctrine as adopted in Milledge.

C. Baker v. Heartland Food Corp. (I)

After Pavese and Childers, it appeared that the Positional Risk Doctrine had been effectively eliminated as the law as contemplated by the amendments to Indiana Code § 22-3-2-2 (a). However, this was about to change when the Appellate Court in Baker (I) rendered its first decision. In Baker, the plaintiff was an employee who experienced back pain while at her job on August 3, 2007. She was taken to a hospital by her mother and diagnosed with a herniated disc for which she had two surgeries. Baker initially denied that the herniated disc was work-related, but she subsequently filed an application for adjustment of claim alleging her injury was work-related.

The hearing Judge found that Baker initially stated she was bent over and not lifting anything, but subsequently, she testified that she was wrestling with a bun tray. She had also given various medical providers a variety of stories as to how the back pain began. At the hearing, Baker’s relevant medical records were submitted as evidence, but those records did not include a medical opinion regarding the etiology of her injury. Ultimately, the hearing Judge found that the plaintiff had not established her burden of proof that her injury arose in the course of her employment. This ruling was upheld by the Full Indiana Worker’s Compensation Board and the appeal ensued. On August 28, 2009, the Baker (I) Court issued an opinion reversing the Indiana Worker’s Compensation Board. The Court opined that since neither party had established the causal nexus for the plaintiff’s injury, the burden was upon Heartland to rebut the presumption in Baker’s favor. For this proposition, the Court cited Milledge and its progeny. Quixotically, the Court made no citation to the amended statute or Pavese and Childers.

Heartland timely petitioned for a rehearing citing the amended statute, Indiana Code § 22-3-2-2 (a), and the Pavese case. Baker responded to Heartland’s petition by arguing that the Legislature had intended to support the Positional Risk Doctrine as espoused in Milledge.

On October 16, 2009, the Court of Appeals issued a rare ruling wherein it withdrew its published decision of August 28, 2009. It declared that the August 28, 2009 decision was vacated, withdrawn and held for naught. As such, Heartland’s Petition for Rehearing was denied as moot.

D. Baker v. Heartland Food Corp. (II)

On November 4, 2009, the Appellate Court reissued its decision in Baker v. Heartland Food. It should be noted that the original decision was for publication and the subsequent decision was done by memorandum and not for publication. Pursuant to the Indiana Rules for Appellate Procedure 65 (B), the new decision should not be regarded as precedent and shall not be cited by any Court except by the parties to the case. Nevertheless, the Court of Appeals reaffirmed that the amendment to Indiana Code § 22-3-2-2 (a) overruled the Positional Risk Doctrine as established by Pavese. In doing so, it upheld the decision of the Indiana Worker’s Compensation Board against Baker. In addition, it ruled on two other issues that are worthy of note.

In Baker’s original appeal, she argued that her injury was an obvious one which did not need the opinion of an expert to establish a causal nexus. However, the Court of Appeals correctly pointed out that the plaintiff was requesting a reweighing of the evidence which it could not do.

Also, Baker originally asked that the subsequent deposition of a physician be allowed to be considered. After the hearing before hearing Judge, the plaintiff sought to remedy her failure to establish a causal nexus by conducting the deposition of the surgeon who had performed her surgeries. In that subsequent deposition, the surgeon indicated that it was his opinion the plaintiff injured herself while executing her duties for Heartland. Baker then moved to introduce the deposition of the surgeon in her appeal to the Full Indiana Worker’s Compensation Board.

At the hearing before the Full Indiana Worker’s Compensation Board, the Board refused to accept the deposition of the surgeon as additional evidence. The Court of Appeals averred that Baker had waved the issue because she did not make an offer to prove the deposition during the hearing before the Full Board. Further, Baker did not demonstrate that the Board clearly abused it discretion when it denied her petition to introduce new evidence. Baker’s explanation for her failure to obtain the deposition in a more timely manner was unpersuasive.

Because of the importance of these legal issues to the worker’s compensation practice, Heartland requested that Baker (II) be published as well. This request was denied by the Court of Appeals. However, one can review the decision and determine how the Court may lean when ruling on these issues in the future. Because no Petition for Rehearing or Transfer has been timely filed, one can assume that this is the final ruling regarding the Baker litigation.

E. Edwards v. Domino’s Pizza

A more recent decision has cemented the onus required plaintiffs under Indiana Code § 22-3-2-2 (a). In Edwards, a manager of a Domino’s Pizza closed the store, ran a close-out report, and departed in his own vehicle. After closing, he gave an employee a ride home and during that trip, Edwards’ vehicle was rear-ended by a drunk driver and both were killed in the accident. Edwards’ widow then filed an application for an adjustment of claim seeking death benefits under the Act. While this case was not specifically dealing with a neutral risk, it does point out the analysis that courts will use in the future. Here, the Indiana Worker’s Compensation Board found that the plaintiff could not establish that Edwards’ accident arose out of his employment. The Edwards Court cited Pavese in dicta noting that an accident occurs in the course of employment when it takes place of a period of employment, at a place where the employee may reasonably be, and while the employee is fulfilling the duties employment or while engaged in doing something incidental thereto. Both the requirements must be met before compensation is awarded, and neither alone is sufficient. The person who seeks worker’s compensation benefits bears the burden of proving both elements.

As in Baker (II), the Edwards decision was an unpublished memorandum decision. Accordingly, the Indiana Rules of Appellate Procedure 65(D) states that the decision should not be regarded as precedent or cited before any Court except for the purposes of establishing a defense of res judicata, collateral estoppel, or the law of the case. Nevertheless, we can see the Court’s tendencies in both Baker (II) and Edwards with regards to the onus of plaintiffs involving a neutral risk or another uncorroborated element. Simply put, the Courts have determined that the amendment to Indiana Code § 22-3-2-2 (a) will no longer require that an employer prove a negative in defending a claim with a neutral risk i.e. that the risk was not incidental to the employment.

III. Conclusion

By tracing the survey of case law presented here, the genesis of the Positional Risk Doctrine can be traced through the Indiana Supreme Court’s ruling in Milledge and legislature’s response in amending Indiana Code § 22-3-2-2 (a). Perhaps, legislature reacted because of the uncertainty created by the Positional Risk Doctrine. It appeared in the practice of workman’s compensation law that claimants gain an advantage if they did not know, could not recall, or could not explain how their injuries occurred. In those instances, if the cause of their accident were unexplained, then the burden would shift to the employer to prove that the cause of the accident was an idiopathic condition of the plaintiff. Because this often times can be impossible to prove, a plaintiff could prevail without having to prove causation. This rendered the Act inharmonious with the entirety of tort law, specifically regarding the allocation of burden in the establishment a claim.

With the amendment of Indiana Code § 22-3-2-2 (a), legislature sought to codify and clarify that the burden on every element of the claim is to remain with the plaintiff. This approach seems far more equitable when we consider the affirmative defenses that an employer may assert under Indiana Code § 22-3-2-8. In those instances, the burden of proof then shifts to the employer after an employee has met the initial burden of proving a valid claim. Consequently, each party bears the burden of proof with regards to its own assertion. A plaintiff has a burden to prove all elements of his or her claim and the defendant has the burden to prove each every element of its affirmative defense. This outcome is far more in tune with traditional assumptions of tort law.

Placing the burden upon a plaintiff to prove each and every element of his or her claim is not particularly onerous, when the Worker’s Compensation Act provides that this burden can be met with a written report by a physician. For instance, in the Baker case, the plaintiff could have easily prevailed had she submitted a report that met the criteria of the Act. In doing so, the Indiana Worker’s Compensation Board would then have had some evidence upon which to find that the plaintiff met her burden.

Now that it is clear that a plaintiff has a burden of proof with regards to each and every element of the claim, both employers and employees can evaluate claims with more certitude. Employees will know what medical evidence they must garner to prevail, and employers can determine their exposure if such evidence is presented to them.

This article first appeared in 7(1) Indiana Civil Litigation Review 19 (2010). The Review is a publication of Defense Trial Counsel of Indiana. Reprinted with permission of the Defense Trial Counsel of Indiana.
Christopher Cross is an Associate at Skiles Detrude and is a member of the Defense Trial Counsel of Indiana.