ADVERTISEMENTS

The Indiana Worker's Compensation Act was amended effective July 1, 2006. Changes to the Act included increases in the maximum AWW, PPI benefits, and total compensation. One other significant change is the addition of a new section to the Act which states, in part: "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." A similar provision was added to the Occupational Disease Act.

This provision appears to be in response to the Indiana Supreme Court's adoption of the positional risk doctrine in Milledge v. The Oaks, 784 N.E.2d 926 (Ind. 2003). The positional risk doctrine separates risks incidental to employment into three categories: (1) risks distinctly associated with employment, which are generally covered under the Act; (2) risks that are personal to the employee, such as pre-existing illnesses or conditions, which are generally not covered under the Act; and (3) neutral risks, which are neither distinctly personal to the employee nor distinctly associated with the employment. Milledge, 784 N.E.2d at 933-934.

If the employee is able to show that the injury resulting from a neutral risk occurred in the course of the employment, the positional risk doctrine creates a rebuttable presumption the the injury arose out of the employment. If the employer is unable to rebut that presumption, the injury is deemed compensable.

The Indiana courts have long held that the burden is on the employee to establish each fact necessary to show that he or she is entitled to worker's compensation benefits. The new section added to the Act appears to simply reaffirm this well-established principle of law. Although the rebuttable presumption adopted in Milledge applied only to neutral risks, the new section of the Act contains no exceptions to the employer's burden of proof. How this may be resolved by the Indiana courts in the future remains to be seen.

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