Milledge v. Oaks

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

RONALD E. JAMES ROBERT D. WOODS
Benson, Pantello, Morris Hunt Suedhoff Kalamaros, LLP
James & Logan South Bend, Indiana
Fort Wayne, Indiana

IN THE

SUPREME COURT OF INDIANA

PHYLLIS MILLEDGE, )
) Supreme Court Cause Number
Employee-Appellant, ) 93S02-0206-EX-346
)
v. )
)
THE OAKS, A LIVING CENTER, ) Court of Appeals Cause Number
) 93A02-0104-EX-233
Employer-Appellee. )

APPEAL FROM THE FULLWORKERS COMPENSATION BOARD OF INDIANA
G. Terrence Coriden, Chairman of the Full Board
The Honorable Linda P. Powell, Hearing Judge
Cause No. C-134211

Civil Transfer

March 14, 2003

RUCKER, Justice

Case Summary

This case presents the question of when and to what extent an injury
resulting from an unexplained accident occurring in the workplace is
compensable under Indiana’s Worker’s Compensation Act. We conclude that an
unexplained accident represents a “neutral risk” and that the “positional-
risk” doctrine applies. Under which, an injury is compensable if it would
not have occurred but for the fact that the condition or obligation of the
employment put the employee in the position at the time of injury.

Facts and Procedural History

In 1983 Phyllis Milledge began working as a housekeeper at a nursing
home known as “The Oaks, A Living Center.” On October 21, 1994, she
arrived at work shortly before 7 a.m. to begin her usual shift and parked
her car in the nursing home parking lot. After closing the door upon
exiting the car Milledge twisted her ankle. She proceeded to her job and
completed the majority of her shift but the pain in her ankle prevented
Milledge 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 on November 6, 1994, where she was treated with
antibiotics. On November 14, 1994, 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 a prosthesis.

When The Oaks’ worker’s compensation insurance carrier denied her
claim for benefits on March 3, 1995, Milledge filed an Application for
Adjustment of Claim before the Worker’s Compensation Board. On July 21,
1999, a hearing was conducted before a single-member hearing officer who
denied the claim concluding in part:
The record shows [Milledge’s] injury may have occurred in the course
of her employment, but fails to show any causal connection between her
ankle sprain and her work duties for [The Oaks]. Thus, [Milledge’s]
injury did not arise out of and in the course of her employment with
[The Oaks] for the purposes of the [Indiana Worker’s Compensation]
Act.

Appellant’s App. at 9. In a vote of five to two, the Full Board adopted
the single hearing officer’s decision. The Court of Appeals affirmed in a
published opinion. See Milledge v. The Oaks, 764 N.E.2d 230 (Ind. Ct. App.
2002). Having previously granted transfer, we now reverse the decision of
the Worker’s Compensation Board and remand this cause for further
proceedings.

Discussion

The Worker's Compensation Act authorizes the payment of compensation
to employees for "personal injury or death by accident arising out of and
in the course of the employment." Ind. Code § 22-3-2-2(a). An injury
"arises out of" employment when a causal nexus exists between the injury
sustained and the duties or services performed by the injured employee.
Outlaw v. Erbrich Prods. Co., Inc., 742 N.E.2d 526, 530 (Ind. Ct. App.
2001); Ind. Mich. Power Co. v. Roush, 706 N.E.2d 1110, 1113 (Ind. Ct. App.
1999), trans. denied. An accident occurs "in the course of employment"
when it takes place within the period of employment, at a place where the
employee may reasonably be, and while the employee is fulfilling the duties
of employment or while engaged in doing something incidental thereto.
Outlaw, 742 N.E.2d at 530; Tanglewood Trace v. Long, 715 N.E.2d 410, 413
(Ind. Ct. App. 1999), trans. denied. Both requirements must be met before
compensation is awarded, and neither alone is sufficient. Conway v. Sch.
City of East Chicago, 734 N.E.2d 594, 598 (Ind. Ct. App. 2000), trans.
denied. The person who seeks Worker's Compensation benefits bears the
burden of proving both elements. Id.
There is no question that the injury Milledge sustained in this case
occurred in the course of her employment. She sprained her ankle on the
parking lot of her employer while arriving for work at her regularly
scheduled time. See, e.g., Lawhead v. Brown, 653 N.E.2d 527, 529 (Ind. Ct.
App. 1995) (employee entitled to compensation where injury occurred
immediately after employee “clocked-out” but while present on employer-
controlled parking lot); Ward v. Tillman, 179 Ind. App. 626, 386 N.E.2d
1003, 1005 (1979) (“[L]iability of employers has been extended beyond the
immediate job site. . . . Accidents resulting from the ingress-egress of
employees to a plant within workmen’s compensation coverage [are] an
employment-related risk.”). Rather, the question is whether Milledge’s
injury arose out of her employment. Highlighting the Board’s finding that
the parking lot was “clean, dry, level and clear of debris” the Court of
Appeals concluded the injury Milledge sustained did not arise out of her
employment. Milledge, 764 N.E.2d at 234. This was so because the facts of
this case lacked the requisite causal connection between the injury and the
employment. Id.
Commenting on the causal connection necessary to show that an
accidental injury arises out of employment, this Court has said “[the]
nexus is established when a reasonably prudent person considers the injury
to be born out of a risk incidental to the employment, or when the facts
indicate a connection between the injury and the circumstances under which
the employment occurs.” Wine-Settergren v. Lamey, 716 N.E.2d 381, 389
(Ind. 1999); see also Blaw-Knox Foundry & Mill Machinery, Inc. v. Dacus,
505 N.E.2d 101, 102-03 (Ind. Ct. App. 1987) (“[A] connection is established
when the accident arises out of a risk which a reasonably prudent person
might comprehend as incidental to the work. It is not necessary that the
injury should have been expected or foreseen.”), trans. denied.
The “risk[s] incidental to employment” fall into three categories:
(1) risks distinctly associated with employment, (2) risks personal to the
claimant, and (3) risks of neither distinctly employment nor distinctly
personal in character. Roush, 706 N.E.2d at 1114; see also 1 Arthur Larson
& Lex K. Larson, Larson’s Workers’ Compensation Law 4-1 (2002). Risks that
fall within categories numbered one and three are generally covered under
the Indiana Worker’s Compensation Act. However risks personal to the
claimant, those “caused by a pre-existing illness or condition unrelated to
employment,” are not compensable. Kovatch v. A.M. Gen., 679 N.E.2d 940,
943 (Ind. Ct. App. 1997), trans. denied.
Risks in category number one are those we intuitively think of as work
connected. As Professor Larson explains, this category includes: “[a]ll
the things that can go wrong around a modern factory, mill, mine,
transportation system, or construction project . . . and constitute the
bulk of what not only the public but perhaps also the original drafters of
compensation acts had in mind as their proper concern.” Larson, supra, §
4.01, at 4-1 – 4-2. See, e.g., Control Techniques, Inc. v. Johnson, 762
N.E.2d 104, 106 (Ind. 2002) (electrician severely burned while measuring
the voltage in a circuit breaker at a factory); Mid-West Box Co. v.
Hazzard, 195 Ind. 608, 146 N.E. 420, 420-21 (1925) (employee’s finger
severed while operating machinery); Turner v. Richmond Power & Light Co.,
756 N.E.2d 547, 550 (Ind. Ct. App. 2001) (employee electrocuted when
excavating a sewer line after co-worker hit a buried power line), trans.
denied. The underlying theme uniting these cases is that the injury
sustained by the claimant was the result of conditions inherent in the work
environment. In this case there was nothing inherent in The Oaks’ parking
lot that either caused or contributed to Milledge’s injury. As such her
injury was not born out of a risk categorized as distinctly associated with
employment.
As for category number two, the record does not show that Milledge’s
injury to her ankle was the result of a pre-existing illness or condition.
To the contrary, although the Board made no finding on this point,
uncontroverted evidence of record reveals that prior to the accident of
October 21, 1994, Milledge experienced no problems with her right leg in
general or to her ankle in particular. R. at 21, 32-33. The record also
shows, that although Milledge suffered from diabetes for thirty years, at
the time of the accident she was taking medication for her diabetes and she
reported having no trouble with the illness; additionally, she noted that
diabetes had never prevented her from fulfilling her job responsibilities.
R. at 13, 24. In this case Milledge simply has no explanation of what
caused her to twist her ankle; nor does the record give any indication of
causation. The facts here are thus analogous to those cases involving
injuries suffered by an employee as the result of an “unexplained” fall.
As the Court of Appeals has observed:
Workplace falls can result from either an employment, personal or
neutral risk, or from a combination thereof. Some falls clearly
result from risks personal to the employee; that is, they are caused
by a pre-existing illness or condition, unrelated to employment. As a
general matter, these “idiopathic” falls are not compensable. In
contrast, some falls are “unexplained” in that there is no indication
of causation. Most jurisdictions compensate such falls, classifying
them as neutral risks.

Kovatch, 679 N.E.2d at 943 (citations omitted).[1]
Courts have taken three approaches in addressing the “arising out of”
element in unexplained fall cases. One approach requires the worker to
rule out idiopathic causes for the fall. If the worker carries that
burden, then an inference arises that the fall arose out of employment.
Using this approach the Oregon Supreme Court has applied a “work-
connection” test to determine whether an injury arises out of and in the
course of employment. Phil A. Livesley Co. v. Russ, 672 P.2d 337, 339, 340
(Or. 1983). The “work-connection” test focuses on whether the relationship
between the injury and the employment is sufficient for the injury to be
compensable. Id. at 339. If the “in the course of” element is fully met,
then it will satisfy the “arising out of” element, provided the employee
rules out idiopathic causes. Id. at 342. See also Waller v. Mayfield, 524
N.E.2d 458, 464-65 (Ohio 1988) (“Where the course of employment test is
fully met, where cause-in-fact cannot be directly established, and where
the claimant has met his burden of eliminating idiopathic causes, we
interpret the Workers’ Compensation Act to allow the inference that the
unexplained fall arose out of employment.”). Although this is an
attractive approach, it nonetheless places the employee in the position of
attempting to prove a negative. This is not a burden we believe the
employee should have to bear. See, e.g., Town of Montezuma v. Downs, 685
N.E.2d 108, 116 n.9 (Ind. Ct. App. 1997) (“To require the Downs to
affirmatively prove that the pipeline was not inspected would require them
to prove a negative, something which we refuse to do.”), trans. denied;
Jackson v. Warrum, 535 N.E.2d 1207, 1218 (Ind. Ct. App. 1989) (describing
as “impossible” the “burden of proving a negative fact”). We therefore
decline to adopt this view.
A second approach leaves the burden on the employee to show a causal
connection between the injury and the employment. This is the most
difficult burden to meet when an injury occurs without explanation. And
although it is especially well suited for injuries that result from risks
distinctly associated with employment, as discussed in more detail below,
it is problematic for risks that are neither distinctly employment related
nor distinctly personal in character. This is essentially the approach
adopted by the Court of Appeals in this case.
A third approach involves applying the “positional risk test” also
referred to as the “positional risk doctrine.” See Smith v. Bob Evans
Farms, Inc., 754 N.E.2d 18, 26 n.1 (Ind. Ct. App. 2001) (observing that
under Indiana law “the positional risk doctrine is generally applied to
neutral risks”), trans. denied; accord K-Mart Corp. v. Novak, 521 N.E.2d
1346, 1348-49 (Ind. Ct. App. 1988), trans. denied. Under this doctrine
“[a]n injury arises out of the employment if it would not have occurred but
for the fact that the conditions and obligations of the employment placed
claimant in the position where he was injured.” Larson, supra, § 3.05, at
3-6. This but for reasoning is the foundation of the positional risk
doctrine, under which if the “in the course of” employment element is met,
then there is a rebuttable presumption that the injury “arises out of”
employment. Although similar to the “work connection” test mentioned
above, here the burden is on the employer to demonstrate that the injury
was actually the result of a cause personal to the claimant.
The positional risk doctrine is generally applied in those instances
where injuries result from risks that are categorized as neutral. See,
e.g., Logsdon v. ISCO Co., 618 N.W.2d 667, 673-74, 675 (Neb. 2000) (noting
that Nebraska applies the positional risk doctrine when faced with a
neutral risk such as an unexplained fall and under the doctrine a claimant
is not required to rule out idiopathic causes, but where there is at least
some evidence of a possibility of a personal or idiopathic factor
contributing to the fall, the fall is not properly categorized as a purely
unexplained fall); Cartwright v. Onondaga News Agency, 728 N.Y.S.2d 105,
106 (N.Y. App. Div. 2001) (explaining that an unexplained fall that occurs
in the course of employment is presumed to arise out of employment in the
absence of substantial evidence to the contrary).
We acknowledge, as has the Court of Appeals, that neutral risks
present risk of loss problems. See Milledge,764 N.E.2d at 235 (citing K-
Mart, 521 N.E.2d at 1349 n.1). This is so because the risk does not fall
clearly upon the employer or the employee. Id. Responding to the question
of who should bear this risk, Professor Larson observes:
[T]he usual answer in the past has been to leave this loss on the
employee, on the theory that he or she must meet the burden of proof
of establishing affirmatively a clear causal connection between the
conditions under which the employee worked and the occurrence of the
injury. More recently, some courts have reasoned in the following
vein: Either the employer or the employee must bear the loss; to show
connection with the employment, there is at least the fact that the
injury occurred while the employee was working; to show connection
with the employee there is nothing; therefore, although the work
connection is slender, it is at least stronger than any connection
with the claimant’s personal life.

Larson, supra, § 4.03, at 4-3.
We believe the positional risk doctrine is the appropriate analytical
tool for resolving questions concerning injuries that result from neutral
risks. It has been adopted by a majority of jurisdictions that have spoken
on the subject.[2] And it is consistent with the underlying purpose of the
Worker’s Compensation Act: to provide compensation to workers suffering
from work-related injuries without meeting the liability requirements of
tort law. Worker’s compensation is for the benefit of the employee, and
the Act should “be liberally construed . . . so as not to negate the Act's
humane purposes.” Frampton v. Cent. Ind. Gas Co., 260 Ind. 249, 297 N.E.2d
425, 427 (1973).
In this case the injury to Milledge’s ankle is without explanation.
It is thus classified as a neutral risk in that the cause of the injury is
neither personal to Milledge nor distinctly associated with her employment.
The injury would not have occurred but for the fact that the conditions
and obligations of her employment placed Milledge in the parking lot where
she was injured. In turn, The Oaks has not carried its burden of
demonstrating that this unexplained accident, which precipitated the ankle
injury, was the result of idiopathic causes. Milledge is thus entitled to
compensation under the Indiana Worker’s Compensation Act.
This does not however end our analysis. Milledge sought worker’s
compensation not for her ankle injury alone, but also, and primarily, for
the disability arising from the injury including the surgery that led to
the amputation of her leg. Whether Milledge was entitled to such
compensation was fiercely contested before the single-member hearing
officer.[3] However, determining that Milledge failed to show any causal
connection between her ankle injury and her employment, neither the hearing
officer nor the full Board ever reached the question of whether Milledge’s
infection and subsequent amputation were causally connected to her ankle
injury. Therefore this cause is remanded to the Board for consideration of
this issue.
Conclusion
We conclude that an injury resulting from an unexplained accident
falls under the category of a neutral risk, one neither distinctly personal
to the claimant nor distinctly associated with the employment. We conclude
also that in the case of a neutral risk, the positional risk doctrine
applies. As applied in this case, Milledge would not have been at the
place where she injured her ankle injury but for the duties of her
employment. Consequently, a presumption arises that her injury “arose out
of” employment. Because The Oaks presented no evidence that the injury was
the result of idiopathic causes, it has not rebutted this presumption. On
this issue, we reverse the judgment of the Worker’s Compensation Board.
However, issues still remain as to whether Milledge’s other medical
problems including the amputation of her leg were causally connected to the
ankle injury. Accordingly, on this issue we remand this cause to Worker’s
Compensation Board for further proceedings.
Judgment reversed and cause remanded.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
-----------------------
[1] “[M]eaning by ‘neutral’ neither personal to the claimant nor
distinctly associated with the employment.” Larson, supra, § 3.05, at 3-6.

[2] See, e.g., Circle K v. Indus. Comm’n of Ariz., 796 P.2d 893, 898
(Ariz. 1990) (expressly adopting the positional-risk doctrine); Little Rock
Convention & Visitors Bureau v. Pack, 959 S.W.2d 415, 419 (Ark. Ct. App.
1997) (holding that when an employee suffers an injury from an unexplained
fall while the employee is on the job and performing the duties of his
employment that injury is eligible for compensation under the Worker’s
Compensation Act); Horodyskyj v. Karanian, 32 P.3d 470, 477 (Colo. 2001)
(expressly adopting the positional-risk doctrine); Johnson v. Publix
Supermarkets, 568 S.E.2d 827, 829 (Ga. Ct. App. 2002) (same), cert. denied;
Mayo v. Safeway Stores, Inc., 457 P.2d 400, 402 (Idaho 1969) (same); Hayes
v. Gibson Hart Co., 789 S.W.2d 775, 777 (Ky. 1990) (documenting “a long
line of Kentucky cases” recognizing the positional risk doctrine); Mulready
v. Univ. Research Corp., 756 A.2d 575, 583 (Md. 2000) (observing that the
rule adopted by the Court is “substantially” the positional risk test);
Stanley Baran’s Case, 145 N.E.2d 726, 727 (Mass. 1957) (holding that in
determining whether an accident “arose out of” employment the issue is
“whether [the employee’s] employment brought him in contact with the risk
that in fact caused his injuries.”); Whetro v. Awkerman, 174 N.W.2d 783,
786 (Mich. 1970) (holding that where the employment of the injured
employees “was the occasion of the injury” the injuries “arose out of”
employment); United Fire & Cas. Co. v. Maw, 510 N.W.2d 241, 244 (Minn. Ct.
App. 1994) (noting that Minnesota applies the positional risk doctrine when
the general public and the employee are equally subject to the risk that
caused the injury); Johnson v. Roundtree, 406 So. 2d 810, 810-11 (Miss.
1981) (affirming an award of compensation pursuant to the positional risk
doctrine); Mule v. N.J. Mfrs. Ins. Co., 812 A.2d 1128, 1133 (N.J. 2003)
(expressly adopting positional risk doctrine); Ensley v. Grace, 417 P.2d
885, 888 (N.M. 1966) (holding that where an employee is fatally injured in
an unexplained assault there is a rebuttable presumption that the
employee’s death arose out of the employment); Turner v. B Sew Inn, 18 P.3d
1070, 1076 (Okla. 2000) (holding that “arising from on premises accidents –
even those which under other facts might present a ‘neutral’ risk, i.e.
weather conditions – are compensable”); Workmen’s Comp. Appeal Bd. of Pa.
v. Borough of Plum, 340 A.2d 637, 640 (Pa. Commw. Ct. 1975) (explaining
that in worker’s compensation the causation element required by the phrase
“and related thereto” that appears in the worker’s compensation act can be
satisfied if “but for” the employment the employee would not have been on
the job and thus would not have been injured); Steinberg v. S.D. Dep’t of
Military & Veterans Affairs, 607 N.W.2d 596, 604 (S.D. 2000) (expressly
adopting positional risk doctrine); Walters v. Am. States Ins. Co., 654
S.W.2d 423, 426 (Tex. 1983) (listing the circumstances under which
positional risk doctrine has been applied); Clodgo v. Rentavision, Inc.,
701 A.2d 1044, 1046 (Vt. 1997) (expressly adopting positional risk
doctrine); Am. Mfrs. Mut. Ins. Co. v. Hernandez, 642 N.W.2d 584, 591 (Wis.
Ct. App. 2002) (same).

[3] The record shows for example that Milledge introduced a letter
from Dr. William H. Couch, the orthopedic surgeon who amputated her leg
below the knee. After setting forth the patient’s history, the letter
continued in part: “It would be therefore my unequivocal statement that
given the facts presented to me it would appear that the diabetes was a
complicating factor, but the ankle injury that she sustained was the
instigating fact that led to her subsequent infection, and multiple
surgeries eventuating in an amputation.” Appellant’s App. at 16. By
contrast The Oaks introduced a letter from Dr. John Cavanaugh which
provided in part: “I believe that the patient’s ankle sprain that she
sustained in the parking lot was necessary but not sufficient for the
development of gangrene and subsequent need for amputation.” Appellant’s
App. at 20.