The Indiana Court of Appeals has issued a favorable opinion for employers and entered into a welcomed discussion on the burden of proof in cases involving an apparent idiopathic, or unexplained, fall at work. In Pavese v. Cleaning Solutions, (894 N.E.2d 570, Ind.App., 2008) the Court upheld the Worker’s Compensation Board’s finding that Plaintiff had failed to sustain her burden of proving an accidental injury in the course and scope of her employment and that the Plaintiff experienced a wholly personal event which, while unexplained, would not make the Defendant liable under the Indiana Worker’s Compensation Act.
We all recall that after the Indiana Supreme Court’s ruling in Milledge v. Oaks, (784 N.E.2d 926, Ind. 2003), in cases involving neutral risk, placed the burden of proof on employers to prove that the injury was caused by a personal medical condition of the employee left the employer in a predicament. In 2006, the Indiana General Assembly then amended Indiana Code 22-3-22(a) by adding two sentences placing the burden of proof on the employee, as well as stating that 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 a claim.”
In Pavese, the employee had clocked in and began her shift as usual. She dust-mopped the floor and put the mop away. Empty-handed, she walked to retrieve the floor scrubbing machine. A few minutes later co-workers found her unconscious on the floor. Plaintiff remembered waking in an ambulance, but did not remember anything leading up to the fall. Plaintiff was treated in the emergency room for laceration to the back of her scalp, concussion and retrograde amnesia. The treating physician attempted to rule out any pre-existing conditions that may have caused her fall and noted no history of fainting, dizziness or light headed spells, no seizures, normal EKG in ER, normal CT of brain, negative drug test and discharged her with a diagnosis of “syncopal episode, etiology uncertain” with an impression that the sudden onset without warning suggested the possibility of cardiac rhythm disturbance which needs to be evaluated.”
Plaintiff’s application for adjustment was filed when the carrier denied payment of medical bills and the matter was heard at the single hearing and, later, full board levels. Plaintiff testified at hearing that the floor was clean and nothing on it caused the fall. The hearing judge found that Plaintiff failed to sustain her burden of proving an accidental work related injury and held that Plaintiff appeared to have sustained a wholly personal event which, while unexplained, would not make the Defendant liable under the Act. The findings were affirmed by the Full Board 5 to 2.
The Court of Appeals discussed the positional risk doctrine and held that Plaintiff failed to meet her burden of proof and that two possibilities for her fall were presented: 1) a syncopal episode not covered by worker’s compensation and 2) slipping on the floor which is a neutral risk generally covered by worker’s compensation. The evidence supported an unexplained, syncopal episode, or personal event, not compensable, thus illustrating the importance of developing medical evidence addressing each factual detail in support of your defense.