MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 09 2017, 8:54 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEY FOR APPELLEE
Randal M. Klezmer Paul T. Fulkerson
Nathan B. Maudlin Skiles Detrude
Klezmer Maudlin, P.C. Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Pamela McBride, June 9, 2017
Appellant-Plaintiff, Court of Appeals Case No.
93A02-1612-EX-2920
v. Appeal from the Indiana Worker’s
Compensation Board
Midwest Estate Buyers, LLC, The Honorable Linda Peterson
Appellee-Defendant. Hamilton, Chairman
Application No.
C-229470
Robb, Judge.
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Case Summary and Issue
[1] Pamela McBride appeals the decision of the Indiana Worker’s Compensation
Board (“Board”) denying her claim for worker’s compensation benefits.
McBride raises two issues for our review which we consolidate and restate as
whether McBride’s injury arose out of her employment. Concluding her injury
arose out of her employment, we reverse and remand.
Facts and Procedural History
[2] McBride is an employee of Midwest Jewelers & Estate Buyers, a jewelry store
in Zionsville, Indiana. Although not required to do so by management,
McBride often wears nice clothing and tries to look stylish for customers of the
store.
[3] On March 3, 2015, McBride was preparing her lunch when a customer arrived
at the store. As McBride walked towards the customer, the zippers on the
inside of her boots hooked together causing her to trip and fall. McBride
attempted to brace her fall by grabbing a nearby chair. When she grabbed the
chair, it swiveled and she fell to the floor. McBride suffered a right femoral
neck fracture which required a hip replacement.
[4] In April of 2015, McBride filed her Application for Adjustment of Claim with
the Board. A hearing before a Single Member of the Board was held on May
26, 2016. The Single Member denied McBride’s claim on August 27, 2016, and
McBride filed her Application for Review by the full Board shortly thereafter.
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After a hearing before the full Board, the Board adopted the findings of the
Single Member and affirmed the denial of McBride’s Application for
Adjustment of Claim. The Board determined McBride did not meet her burden
to show her injury arose out of her employment. McBride now appeals.
Discussion and Decision
I. Standard of Review
[5] On appeal from a decision of the full Board, we are bound by the Board’s
factual determinations. Morris v. Custom Kitchen & Bath, 64 N.E.3d 912, 916
(Ind. Ct. App. 2016), trans. denied. 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 the one reached by the Board. Id.
[6] Generally, the issue of whether an employee’s injury or death arose “out of and
in the course of” his or her employment is a question of fact to be determined
by the Board. Ind. Mich. Power Co. v. Roush, 706 N.E.2d 1110, 1113 (Ind. Ct.
App. 1999), trans. denied. But when the facts relating to the question of liability
under the Worker’s Compensation Act (“Act”) are undisputed and lead to only
one reasonable inference, the determination of whether an injury or death arose
“out of and in the course of” employment is a question of law. Sanchez v.
Hamara, 534 N.E.2d 756, 758 (Ind. Ct. App. 1989), trans. denied. We may
reverse the Board’s decision on a question of law if the undisputed evidence
reveals that the Board’s decision is an incorrect interpretation of law. Duvall v.
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ICI Americas, Inc., 621 N.E.2d 1122, 1124 (Ind. Ct. App. 1993). The burden
rests with the claimant to prove a right to compensation under the Act. Morris,
64 N.E.3d at 916.
II. Arising Out of Employment
[7] The Act mandates 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 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.” Morris,
64 N.E.3d at 916. An injury arises out of employment when a causal nexus
exists between the injury sustained and the duties or services performed by the
employee. Id.
[8] The parties do not dispute McBride’s injury occurred in the course of her
employment with Midwest Jewelers. Rather, the question is whether
McBride’s injury arose out of her employment. In order to meet her burden of
proving that her injury arose out of her employment, McBride was required to
establish the existence of a causal nexus between the injury she suffered and the
duties or services she performed for Midwest Jewelers. See id. The required
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
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employment occurs.” Pavese v. Cleaning Solutions, 894 N.E.2d 570, 575 (Ind. Ct.
App. 2008).
[9] Risks incidental to employment fall into three categories: (1) risks distinctly
associated with employment, (2) risks personal to the claimant, and (3) risks
neither distinctly employment nor distinctly personal in character. Milledge v.
Oaks, 784 N.E.2d 926, 930 (Ind. 2003), superseded on other grounds by Ind. Code §
23-3-2-2(a). “Risks that fall within categories numbered one and three are
generally covered under the . . . Act.” Id. Those risks included within the first
category are “[a]ll the things that can go wrong around a modern factory, mill,
mine, transportation system, or construction project . . . [that are] the result of
conditions inherent in the work environment.” Id. (alteration in original)
(internal quotation marks and citations omitted). Risks included within the
second category, risks personal to the claimant, are those “caused by a pre-
existing illness or condition unrelated to employment,” and are not
compensable. Id. (citation omitted). However, risks included within the third
category are those intermediate risks that lie between distinctly personal risks or
distinctly employment related risks. These risks may be a combination of
employment and personal elements or a lesser degree of either element.
[10] In concluding McBride was not entitled to receive Worker’s Compensation
benefits, the Board adopted the conclusion of the Single Member that
“[McBride’s] fall and injuries were not as a result of her employment. . . .
[McBride’s] injuries resulted from a personal risk. She selected and purchased
these boots on her own. She chose to wear them on the day of the incident
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when she was not required to do so.” Appellant’s Appendix, Volume II at 7.
McBride argues the Board erred in concluding her injury resulted from a risk
personal to her.1 We agree.
[11] In Pavese, an employee of a cleaning company was found unconscious on the
floor of a business where she had been sent to provide cleaning services. 894
N.E.2d at 573. A medical examination resulted in a preliminary diagnosis of
“an unexplained syncopal episode,” but the physician also could not rule out
the possibility of a fall due to slipping on the concrete floor. Id. at 574. Upon
appeal following the denial of worker’s compensation benefits, this court held
that—although Pavese’s injury had occurred in the course of her employment—
she had failed to meet her burden of proving that her injury arose out of her
employment. Id. at 578. This court noted the Single Hearing member found
Pavese experienced an unexplained syncopal episode, such was “a personal
event,” and Pavese had not met her burden of proving she slipped on the
concrete floor. Id.
[12] Unlike the factual scenario in Pavese, McBride testified her fall and injury was
not the result of a pre-existing illness or condition, and there is no evidence to
the contrary. Therefore, her fall was not a personal risk. See Metro. Sch. Dist. of
Lawrence Twp. v. Carter, 803 N.E.2d 695, 699 (Ind. Ct. App. 2004) (noting that
1
McBride also asserts the placement of the chair increased the dangerous effect of her fall and is subject to an
increased risk analysis. See Kovatch v. A.M. General, 679 N.E.2d 940, 943-44 (Ind. Ct. App. 1997), trans.
denied. However, McBride simply produced no evidence, through testimony or otherwise, that her
employment or the placement of the chair increased the dangerous effects of her fall.
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tripping is not a personal risk where it does not involve a pre-existing illness or
condition). Although her choice of clothing and footwear is a personal choice
and in this case was not dictated by company policy, an employee of a fine
jewelry store would certainly be required to wear some form of footwear.
Further, McBride testified she often dressed up and tried to look stylish for her
work which involved meeting with customers. Therefore, we think McBride’s
case falls within the third category, those risks neither distinctly employment
related nor distinctly personal in character.
[13] As noted above, our standard of review permits us to disturb the Board’s factual
findings if the evidence is undisputed and leads inescapably to a result contrary
to that reached by the Board. We think this is such a case and we hold
McBride’s injury arose out of her employment with Midwest Jewelers. While
her injury was the result of a personal choice of attire, the evidence was
undisputed McBride dressed up and attempted to look stylish for work.
Accordingly, we find McBride’s injury stems from a risk that is neither
distinctly employment related nor distinctly personal in character; therefore, her
injury falls within the third category and is covered by the Act. See A Plus Home
Health Care, Inc., v. Miecznikowski, 983 N.E.2d 140, 145 (Ind. Ct. App. 2012)
(holding risks falling within category three are incidental to employment and
covered by the Act), trans. denied. We therefore reverse the Board’s decision
and remand for further proceedings.
Conclusion
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[14] The facts of this case lead inescapably to the conclusion that McBride’s injury
arose out of her employment with Midwest Jewelers, a decision contrary to the
Board’s. Accordingly, we reverse the Board’s decision and remand for further
proceedings.
[15] Reversed and remanded.
Vaidik, C.J., and Bailey, J., concur.
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Pamela McBride v. Midwest Estate Buyers, LLC (mem. dec.)
Combined Opinion