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
SUPREME COURT OF INDIANA
PHYLLIS MILLEDGE, )
) Supreme Court Cause Number
Employee-Appellant, ) 93S02-0206-EX-346
THE OAKS, A LIVING CENTER, ) Court of Appeals Cause Number
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
March 14, 2003
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 Indianas
Workers 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, Milledges right leg was amputated below the knee.
Subsequently, she was fitted with a prosthesis.
When The Oaks workers compensation insurance carrier denied her claim for benefits on
March 3, 1995, Milledge filed an Application for Adjustment of Claim before the
Workers 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 [Milledges] 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, [Milledges] injury did not arise
out of and in the course of her employment with [The Oaks] for
the purposes of the [Indiana Workers Compensation] Act.
Appellants App. at 9. In a vote of five to two, the
Full Board adopted the single hearing officers 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 Workers Compensation Board and remand this cause for further
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 workmens compensation coverage [are] an employment-related risk.).
Rather, the question is whether Milledges injury arose out of her employment.
Highlighting the Boards 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, Larsons Workers Compensation
Law 4-1 (2002). Risks that fall within categories numbered one and three
are generally covered under the Indiana Workers 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) (employees 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 Milledges 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 Milledges 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
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
Kovatch, 679 N.E.2d at 943 (citations omitted).
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
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 claimants personal life.
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.
it is consistent with the underlying purpose of the Workers Compensation Act: to
provide compensation to workers suffering from work-related injuries without meeting the liability requirements
of tort law. Workers 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 Milledges 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
Workers Compensation Act.
This does not however end our analysis. Milledge sought workers 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.
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 Milledges infection and
subsequent amputation were causally connected to her ankle injury. Therefore this cause
is remanded to the Board for consideration of this issue.
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 Workers Compensation Board. However, issues still remain as to whether Milledges
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 Workers
Compensation Board for further proceedings.
Judgment reversed and cause remanded.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
[M]eaning by neutral neither personal to the claimant nor distinctly associated
with the employment. Larson, supra, § 3.05, at 3-6.
See, e.g., Circle K v. Indus. Commn 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 Workers 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 Barans 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 employees] 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 employees 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); Workmens Comp. Appeal Bd. of Pa. v.
Borough of Plum, 340 A.2d 637, 640 (Pa. Commw. Ct. 1975) (explaining that
in workers compensation the causation element required by the phrase and related thereto
that appears in the workers 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. Dept 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)
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 patients 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. Appellants App.
at 16. By contrast The Oaks introduced a letter from Dr. John
Cavanaugh which provided in part: I believe that the patients ankle sprain
that she sustained in the parking lot was necessary but not sufficient for
the development of gangrene and subsequent need for amputation. Appellants App. at