FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jan 30 2013, 9:56 am
court except for the purpose of
establishing the defense of res judicata,
CLERK
collateral estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
LIBBY VALOS MOSS CRAIG W. GRAHAM
MARK D. GERTH Jeffersonville, Indiana
Kightlinger & Gray, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KINDRED NURSING CENTERS, LTD )
PARTNERSHIP d/b/a WEDGEWOOD )
HEALTHCARE, )
)
Appellant-Defendant, )
)
vs. ) No. 93A02-1207-EX-553
)
LINDA DAVIS, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WORKER’S COMPENSATION BOARD OF INDIANA
The Honorable Linda Peterson Hamilton, Chairman
Cause No. C-209389
January 30, 2013
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge
STATEMENT OF THE CASE
Appellant-Defendant, Kindred Nursing Center, Ltd Partnership, d/b/a Wedgewood
Healthcare (Wedgewood), appeals the Worker’s Compensation Board’s (Board)
determination that Appellee-Plaintiff’s, Linda Davis (Davis), injury arose out of her
employment with Wedgewood.
We affirm.
ISSUE
Wedgewood raises one issue on appeal, which we restate as: Whether the Board
erred in its determination that Davis’ injury arose out of her employment.
FACTS AND PROCEDURAL HISTORY
Davis works as a charge nurse at Wedgewood, a long-term care facility. As a
charge nurse, she is responsible for administering medications, charting, paperwork, and
various other tasks. During working hours, Wedgewood requires its charge nurses to
wear scrubs and rubber soled shoes with a back.
On March 4, 2011, Davis finished her shift and walked to the front office area to
make copies of patients’ weight charts. After placing copies in Wedgewood’s dietician’s
mailbox, she returned to the nurses’ station. Noticing that her shoe had become untied,
she lifted her foot onto a chair, tied her shoe and, while bringing her foot down, she
caught her foot on the chair and fell. As a result of the fall, Davis suffered a fracture of
her right knee cap (patella).
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On March 31, 2011, Davis filed an application for adjustment of claim with the
Board alleging that her injuries arose out of her employment. On November 10, 2011,
the Single Hearing Member conducted a hearing and determined that Davis’ injury was
caused by an act incidental to her employment, or at the very least, the accident presented
a neutral risk and was therefore compensable. On December 2, 2011, Wedgewood
appealed the decision to the Board. On June 14, 2012, after a hearing, the Board issued
its Order, affirming the Single Hearing Member and stating in pertinent part:
3. [Davis’] action of tying her shoe was incidental to her employment. The
employees at Wedgewood are required to wear nursing scrubs, specific type
of shoe, and follow a certain dress code. It would be detrimental to the
employer if their employees were walking around the facility with their
shoes untied or with an unkempt [sic] appearance when residents and
family members evaluate the facility based partially on its employees.
Therefore, [Davis’] decision to tie her shoe is a risk associated with her
employment. Additionally, [Davis] is on her feet walking throughout the
day making it more likely for her shoes to come untied and tying her shoes
would be needed to complete her job duties.
(Appellant’s App. p. 003).
Wedgewood now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
On appeal, we review the decision of the Board, not to reweigh the evidence or
judge the credibility of witnesses, but only to determine whether substantial evidence,
together with any reasonable inferences that flow from such evidence, support the
Board’s findings and conclusions. Bertoch v. NBD Corp., 813 N.E.2d 1159, 1160 (Ind.
2004). In so doing, we apply a two-tiered standard of review. Ag One Co-op v. Scott,
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914 N.E.2d 860, 862 (Ind. Ct. App. 2009). We first review the record to determine
whether there is competent evidence of probative value to support the Board’s findings,
and then determine whether the findings support the decision. Id. at 863. As a general
matter, we are bound by the Board’s findings of fact and may only consider errors in the
Board’s conclusions of law. Ind. Mich. Power Co. v. Roush, 706 N.E.2d 1110, 1113
(Ind. Ct. App. 1999). However, we may disturb the Board’s factual determinations if we
determine that the evidence is undisputed and leads inescapably to a result contrary to
that reached by the Board. Id. We review the Board’s conclusions of law de novo.
Bertoch, 813 N.E.2d at 1160. An award made by the Board that is based on competent
evidence will not be reversed on appeal. Blau-Knox Foundry Mill v. Dacus, 505 N.E.2d
101, 102 (Ind. Ct. App. 1987).
II. Injuries Arising Out Of Employment
Contesting the Board’s determination, Wedgewood asserts that Davis’ injury did
not result from a risk incidental to her employment but rather derived from a personal
risk which is not compensable under the Worker’s Compensation Act.
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. 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. Milledge v. Oaks, 784 N.E.2d 926, 929 (Ind. 2003). 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
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the duties of employment or while engaged in doing something incidental thereto. Id.
Both requirements must be met before compensation is awarded, and neither alone is
sufficient. Id. The person seeking worker’s compensation benefits bears the burden of
proving both elements. Id. The parties agree that Davis’ injury occurred during the
course of her employment; therefore, the sole contention before us relates to whether her
injury arose out of her employment with Wedgewood.
Commenting on the causal connection necessary to show that an accidental injury
arises out of employment, our supreme court has stated that “[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). The risks incidental to employment fall into three
categories: (1) risks distinctly associated with employment, (2) risks personal to the
claimant, and (3) neutral risks which have no particular employment or personal
character. Roush, 706 N.E.2d at 1114. Risks that fall within categories 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 a condition unrelated
to employment” are not compensable. Milledge, 784 N.E.2d at 926.
Wedgewood argues that Davis’ injury resulting from tying her shoe was a personal
risk, unrelated to her employment, and thus not covered by the Worker’s Compensation
Act. We disagree. At the time of the accident, Davis was working for Wedgewood’s
benefit, was required to wear rubber soled shoes with a back, and she had to tie her
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shoelaces when they became untied on the job. Therefore, Davis’ act of tying her shoes
was a risk that was related to her employment and the resulting fall was incidental to her
employment. There is no evidence that Davis had any pre-existing injuries to her knee or
that she contributed anything personal or private to the injury. In light of the evidence
presented, the Board properly determined that Davis’ injury is covered by the Worker’s
Compensation Act.
CONCLUSION
Based on the foregoing, we affirm the Board’s determination that Davis’ injuries
arose out of her employment.
Affirmed.
BAKER, J. and BARNES, J. concur
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Kindred Nursing Centers, LTD Partnership d/b/a Wedgewood Healthcare v. Linda Davis
Combined Opinion