Inability to rule out personal reason for fall spells trouble for claim

The Indiana Court of Appeals held that a custodial worker did not meet her burden of proving that a fall at work arose out of her employment. In addition, she failed to establish that an amendment to the Workers' Compensation Act, which required her to prove that her injury was not the result of a personal health condition, was unconstitutional.

Case name: Pavese v. Cleaning Solutions, No. 93A02-0803-EX-284 (Ind. Ct. App. 09/30/08).

What it means: When two possible explanations exist for a worker's fall -- a syncopal episode, which is a personal risk not covered by workers' compensation, and slippery conditions on the floor, which is a neutral risk generally covered by workers' compensation -- the worker has failed to prove that her injury arose out of her employment. Under the 2006 amendments to Indiana's workers' compensation law, the burden of proof remains on the employee throughout the proceedings.

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Summary: A custodial worker was assigned to clean the garage floor at a gas company. She finished sweeping the floor and was retrieving a scrubbing machine when she suffered an unexplained fall. Coworkers found her unconscious on the floor and called 911. She lacerated the back of her scalp and sustained a concussion with retrograde amnesia. The Workers' Compensation Board found that the worker experienced a "personal event on the job that is not covered by the Worker's Compensation Act." Pointing to the 2006 amendments to the workers' compensation law, which keep the burden of proof on the claimant throughout the proceedings, the Court of Appeals concluded that the worker did not establish that her injuries arose out of her employment.

The worker argued that the amendments were unconstitutional because they deprived her of due process and placed a burden on her that she could not meet. Before the amendments took effect, Indiana recognized the "positional risk doctrine," which shifted the burden to employers in cases involving neutral risks. The court rejected the worker's constitutional argument because she presented no analysis in support of it.

November 4, 2008

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