DePuy, Inc. v. Farmer

VAIDIK, Judge,

concurring in part and dissenting in part.

I concur in Part II of the majority's opinion. I must respectfully dissent from Part III, however, in which the majority holds that Farmer's injuries are not com-pensable under the Indiana Worker's Compensation Act because his injuries did not arise out of employment. Particularly in light of our deferential standard of review, I would affirm.

*566The Worker's Compensation Act covers injuries that "arise out of and in the course of" a person's employment. Ind.Code § 22-3-2-2(a); Global Constr., Inc. v. March, 813 N.E.2d 1163, 1165 (Ind.2004). As the majority points out, only the "arise out of" requirement is at issue in the present case. 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. March, 813 N.E.2d at 1165-66. This causal 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 cireumstances under which the employment occurs. Milledge v. The Oaks, 784 N.E.2d 926, 929 (Ind.2003). Risks incidental to employment fall into three categories: (1) risks distinctly associated with employment; (2) risks personal to the claimant; and (8) risks of neither distinctly employment nor distinetly personal in character. Id. at 980. «Risks that fall within categories one and three are generally covered under the Worker's Compensation Act while those that fall within category two are not compensable. Id. As noted by the majority, this case involves a category three risk. To analyze this category of risks, our supreme court has adopted the positional risk doctrine. Id. at 931. Under this doctrine, "[aln 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." Id. at 932.

In its recent case of Global Construction, Inc. v. March, the Indiana Supreme Court addressed whether Daniel March's injury, which was caused by strikers as he was leaving the jobsite, arose out of his employment. In that case, as March was leaving the jobsite, strikers threw an object at his windshield. When a second object cracked his windshield, March stopped his truck. A verbal confrontation ensued, and March was struck in the head with a 2 x 4, causing significant injuries. Our supreme court explained that when determining whether a risk or injury is incidental to employment, courts should consider:

the type of activity in which the employee was engaged when injured and [its] relationship to: his duties; the reasonableness of employee's acts in relation to the sum total of conditions and cireum-stances constituting the work setting at the time of injury; and finally, the knowledge and acquiescence of the employer in situations where acts incidental to employment are being done in violation of company rules.

March, 813 N.E.2d at 1169 (quotation omitted). The pivotal question is whether the person's employment increased the hazard that led to the injury. Id. The court ultimately held that March's injury arose of his employment because "it seems obvious that [he] was struck because of his employment, and if he were a passing motorist rather than an employee exiting a plant under strike his injuries would never have been sustained." Id.

In holding that Farmer's injuries did not arise out of his employment, the majority relies on two cases, both of which are readily distinguishable from the present case. In Rogers v. Bethlehem Steel Corp., 655 N.E.2d 73 (Ind.Ct.App.1995), Joseph Rogers, who was known to carry large sums of money to work and had in the past loaned money to various co-employees including Garry Moore, was robbed and murdered by Moore at work. Rogers and Moore were seen arguing at work several days before Rogers' murder about a matter that was personal in nature and unrelated to employment. Additionally, Moore *567told someone prior to Rogers' murder that he was going to kill Rogers. This Court held that Rogers' death did not arise out of his employment because it resulted from "a risk personal to himself, le., the carrying and loaning of large sums of money." Id. at 76. Unlike Rogers, here there is no evidence that Farmer's injuries resulted from a risk personal to him. Rather, Swin-del attacked Farmer because Farmer brushed his timecard against Swindel's side as he was clocking out of work for the day. The second case, Peavler v. Mitchell & Scott Machine Co., Inc., 638 N.E.2d 879 (Ind.Ct.App.1994), reh'g denied, is clearly inapposite. There, an employee was killed by her ex-boyfriend at work. Here, the dispute was between fellow employees at work.

Unlike the facts in Rogers and Peavier, the facts here show that Farmer's injuries arose out of his employment. Farmer, as a condition of his employment, was required to punch his time card at the end of his shift. While doing so, he encountered Swindel, who was waiting to clock in to start his shift. Thus, the obligations of Farmer's employment placed him in a position where he was injured. Additionally, Farmer's actions of wishing a fellow employee a good morning while clocking out (even though he brushed his timecard against that employee's side in the process) is entirely reasonable in relation to the work setting. Among the many aspects of employment is the social interaction with fellow employees both while performing one's actual work and, as here, while performing tasks incident to one's work, such as clocking in and out. Based on the considerations set forth in March, Farmer's injuries arose out of his employment.

In sum, I believe the evidence does not lead clearly and inescapably to the opposite conclusion of the Full Board, which found that Farmer's injuries arose out his employment. See March, 813 N.E.2d at 1169. I would therefore affirm the Full Board on this issue.