A Plus Home Health Care Incorporated v. Kathleen Miecznikowski
2012 Ind. App. LEXIS 619
Ind. Ct. App.2012Background
- Kathy, a home health care nurse for A Plus, fell on a concrete sidewalk on the way back into a patient’s home after retrieving equipment.
- She filed for workers’ compensation; a SHM found the injury did not arise out of employment, noting the fall described as personal in cause.
- The Board reversed, holding the fall arose out of employment because it was a neutral risk and compensable.
- A Plus challenged, arguing the decision relied on the now-defunct positional risk doctrine and misapplied the neutral risk concept.
- The court discusses the 2006 statutory amendment to Indiana Code § 23-3-2-2 and clarifies neutral risks remain compensable, with the burden on the employee to prove lack of personal risk and presence of neutral risk.
- The court affirms the Board’s decision awarding compensation to Kathy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Kathy’s injury arise out of employment as a neutral risk? | Miecznikowski | A Plus | Yes, compensable as a neutral risk. |
| Does the 2006 amendment eliminate neutral risk as compensable? | Amendment preserves neutral risks | Amendment overruled Milledge but does not bar neutral risks | Neutral risks remain compensable; burden stays with employee. |
| Was the Board’s reliance on Milledge proper post-amendment? | Board correctly applied neutral risk | Positional risk doctrine overruled by statute | Correct to apply neutral-risk framework; no misuse. |
| Was the burden of proof properly placed on Kathy? | Kathy proved no personal risk and existence of neutral risk | Employer bears no presumption under amendment | Burden remains on employee; Kathy met it. |
Key Cases Cited
- Milledge v. The Oaks, 784 N.E.2d 926 (Ind. 2003) (neutral risks compensable; three-risk framework)
- Pavese v. Cleaning Solutions, 894 N.E.2d 570 (Ind. Ct. App. 2008) (statutory amendment overruled Milledge’s doctrine; burden on employee remains)
- Waters v. Indiana State Univ., 953 N.E.2d 1108 (Ind. Ct. App. 2011) (recognizes statutory amendment and its effect on Milledge/Vacant doctrine)
- Kovatch v. A.M. Gen., 679 N.E.2d 940 (Ind. Ct. App. 1997) (pre-existing illness not employment-related in personal-risk analysis)
- Ohlinger Construction Co. v. Mosbey, 427 N.E.2d 910 (Ind. Ct. App. 1981) (distinguishes between positional and neutral risk doctrines)
- Wright Tree Serv. v. Hernandez, 907 N.E.2d 183 (Ind. Ct. App. 2009) (general rule: whether injury arose out of employment is a Board question)