Attorney for Appellant Attorney for Appellee
Gary P. Goodin John C. Grimm
Indianapolis, Indiana Auburn, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
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No. 93S02-0401-EX-21
Global Construction, Inc.,
Appellant (Defendant below),
v.
Daniel T. March,
Appellees (Plaintiff below).
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Appeal from the Indiana Workers Compensation Board, No. C-153805
The Honorable G. Terrence Coriden, Chairman
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On Petition To Transfer from the Indiana Court of Appeals, No. 93A02-0211-
EX-903
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August 25, 2004
Boehm, Justice.
While leaving the foundry where he was assigned by his employer
Daniel March was injured by strikers. We hold that the Worker’s
Compensation Act covers this injury.
Factual and Procedural Background
Global Construction employed Daniel March to service machinery at
various facilities of Global’s customers. In September, 1999, March was
performing maintenance at the Auburn Foundry, in Auburn where employees of
the Foundry were on strike.
March completed his shift at the Foundry at approximately 10:30 p.m.
on the night he was injured. Because a large number of picketing strikers
had congregated in a parking lot across from the employee exit, March
waited approximately fifteen minutes before attempting to leave the Foundry
in his truck via the employee exit. Strikers had positioned cars to shine
their headlights at the gate, which impaired March’s vision as he made a
right turn to exit the Foundry onto the public street bordering the
Foundry. Shortly after March left the Foundry and turned onto the street,
his truck was struck by an object. When a second object cracked his
windshield March stopped the truck. March then backed his truck up or
stopped and either got out of his truck on his own, or was pulled out. A
verbal confrontation ensued and March was attacked, apparently by more than
one person. He was repeatedly struck in the head with a 2 x 4 board, and
suffered significant injuries.
The 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 (1998). 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. The Oaks, 784 N.E.2d 926, 929 (Ind. 2003). An
accident occurs “in the course of” employment when it takes place at the
time and place of a person’s employment while an employee is fulfilling his
duties. Id. March filed a claim for worker’s compensation and a Single
Hearing Member of the Indiana Worker’s Compensation Board entered judgment
for March, finding that his injuries arose out of and the course of his
employment with Global. Global appealed and the Board upheld the Single
Hearing Member’s determination, but the Court of Appeals reversed, finding
the injury neither “arose out of” nor occurred “in the course of” March’s
employment. Global Constr. Inc. v. March, 791 N.E.2d 769, 771 (Ind. Ct.
App. 2003). This Court granted transfer. Global Constr. Inc. v. March,
812 N.E.2d 791 (Ind. 2004).
Standard of Review and Adequacy of Findings
“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.”
Walker v. State, 694 N.E.2d 258, 266 (Ind. 1998).
The Board found that when March’s windshield cracked, he stopped his
truck, but the Board could not conclude whether he backed his truck up or
whether he exited the truck on his own. The Board found that March did not
initiate a physical confrontation, but was attacked by one or more
picketers and struck with a 2 x 4 after he exited the truck. Global argues
that the Board erred in its finding that “The evidence conflicts, as to
whether Plaintiff backed his truck up and whether he exited the truck on
his own, or was pulled out.” Global asserts that the Board is required to
provide more specific findings of fact and that the evidence shows that
March backed his truck up and got out on his own. We agree that the
Board’s findings must be sufficient to allow review. Although the Board
was unable to determine the specific facts of the encounter, it found that
March stopped his truck in response to a cracked window and did not
initiate a fight. Its ultimate conclusion was that March’s injury arose
out of and in the course of his employment. For the reasons given below,
these findings are adequate to establish March’s claim.
I. Injuries “in the Course of” Employment
Global argues that March’s injuries did not meet the statutory
requirement that they be incurred “in the course of” his employment.
Global points out that “March was not on the employer’s premises, had
already completed his work, and was not performing any employment duties.”
In general, to arise “in the course” of employment, an injury must occur
during work and on the employer’s premises. Therefore, most injuries
sustained on route to or from the workplace are not covered. Arthur Larson
& Lex K. Larson, Larson’s Workers’ Compensation Law, § 13.01, at 13-3
(2004). For example, in Donahue v. Youngstown Sheet & Tube Co., 474 N.E.2d
1013, 1014 (Ind. 1985), this Court affirmed the denial by the Worker’s
Compensation Board of benefits for an injury an employee sustained on the
way home from work. We reasoned that the claimant had completed her duties
and clocked out and was crossing a public street when she was injured. Her
employer did not expect or compel her to cross that street. Id. We
explained that because the claimant was on a public street open to and used
by members of the general public, she was exposed to the same dangers as
any member of the public and her injury therefore fell outside of the
employment relationship. Id. at 1015.
Despite this general doctrine, courts have in some circumstances
allowed compensation for injuries that occur close to, but not on, the
employer’s premises when an employee was going to or coming from work. As
the Indiana Court of Appeals early explained, “employment is not limited to
the exact moment when the workman reaches the place where he is to begin
his work, or to the moment when he ceases that work. It necessarily
includes a reasonable amount of time and space before and after ceasing
actual employment, having in mind all the circumstances connected with the
accident.” Reed v. Brown, 129 Ind. App. 75, 82, 152 N.E.2d 257, 259 (1958)
(citation omitted). Thus, employer-controlled parking lots and private
drives used by employees have been held to be extensions of the employer’s
operating premises for purposes of coverage under the Act. Id. Injuries
sustained in public thoroughfares may also be covered under some
circumstances. For example, an employee was allowed to recover for
injuries sustained when she crossed a public street separating her place of
employment from the parking lot her employer provided. Clemans v. Wishard
Mem’l Hosp., 727 N.E.2d 1084, 1087 (Ind. Ct. App. 2000), trans. denied.
The court recognized that ordinarily an injury on a public street is not
compensable, but reasoned that the injury was incidental to her employment
because she was required to cross the public street to access the employee
parking lot. The street “would be used as the most convenient and
reasonable means of ingress to and egress from its operating premises.”
Id. at 1088. The same reasoning applies here. March was injured while
leaving work using the only available means of egress from the employer’s
parking lot. That egress exposed him to a danger specifically related to
March’s employment—passing through a group of agitated striking workers.
Global argues that the strikers posed a threat to all who used the street,
and therefore were not peculiar to March’s employment. We think it obvious
that a worker exiting a plant under picketing is at greater risk than a
passing motorist. Under these circumstances, the area where the protesting
strikers gathered is for all practical purposes an extension of the
workplace and March was not on his own time until freed of the stress of
exiting.
The Court of Appeals based its holding that March’s injury was not “in
the course of” his employment on its conclusion that March was not injured
during his egress from the parking lot. Rather, the Court of Appeals
accepted Global’s contention that March completed making his exit from his
employer’s premises, passed the strikers and only then backed up to
confront them. Global Constr., Inc. v. March, 791 N.E.2d 769, 773 (Ind.
Ct. App. 2003). This conclusion conflicts with the findings of the
Worker’s Compensation Board, which could not determine whether March backed
up his truck or got out of his truck on his own to confront the strikers,
but did conclude that “March did not instigate a physical confrontation
with anyone.” The Board’s findings of fact are sustained if supported by
substantial evidence. There is conflicting evidence as to whether March
backed up and if so why and how much. More importantly, if, at the time of
the injury, the employee was doing what a reasonable person might expect
him to do under the circumstances, the employee has not abandoned his
employment. Nat’l Biscuit Co. v. Roth, 83 Ind. App. 21, 26-27, 146 N.E.
410, 412 (1925). We cannot say as a matter of law March’s response to this
stressful situation was unreasonable. At any rate, whether March acted
personally or as an employee, his injury resulted from a danger specific to
his employment. March was required by his employer to cross the picket
line at the Foundry. See Baggett Transp. Co. v. Holderfield, 68 So. 2d 21,
25 (Ala. 1953) (“if there ever was a time when an employee deserved
compensation for his injuries, it is when the employee, at considerable
personal risk, remains on the job to minimize the deterioration of plant
and other loss being suffered by the employer”); Cf. Bedwell v. Dixie Bee
Coal Corp., 99 Ind. App. 336, 339, 192 N.E. 723, 724 (1934). Stopping his
truck when the windshield was cracked is within the range of reasonable
responses. Even if March disembarked contrary to orders, that is a
predictable response to a plainly stressful situation created by the
circumstances of his employment. We agree that March may have failed to
follow the instructions to ignore the strikers, but no personal motive is
apparent in March’s conduct. Employees cannot be expected to conform
strictly to formal instructions when faced with sudden and intentional
wrongful conduct from others. Although “arising from” and “in the course
of” are usually discussed as independent factors, in practice the two “are
not, and should not be, applied entirely independently.” Larson, supra §
29.01, at 29-1. The stronger the causal link to employment, the weaker the
showing required to find an injury to be incurred in the course of
employment. Here, there is no doubt that March’s injuries were suffered
specifically because of his employment at the plant under strike as he left
the plant gates. The injury was incurred in a chain of events originating
in the course of employment. This is sufficient to support coverage under
the worker’s compensation statute.
Even if passage through the employee exit and the gauntlet of
picketers was “in the course of” March’s employment, the Court of Appeals
found that “when March made the personal decision to reverse his truck and
challenge the strikers he became clearly and irrevocably on a course of
conduct inconsistent with his work and indicating personal business.”
Global Constr., 791 N.E.2d at 773. In part, this conclusion turns on facts
not found by the Board. It is undisputed that March had been instructed to
ignore the picketers even when provoked. Global also argues that March
should not receive compensation because he was the aggressor in the
situation. We agree with Global that if an employee injured in an
altercation is found to be the aggressor in the confrontation, the employee
may be denied compensation. Berryman v. Fettig Canning Corp., 399 N.E.2d
840, 843 (Ind. Ct. App. 1980). However, the Board found that March did not
instigate a physical confrontation. Global argues that the Board’s finding
on this point is contrary to the evidence because March testified “I got
out and confronted him . . .” This testimony does not contradict the
Board’s conclusion. It is not clear that March was referring to
“confronting” the person who struck him. Moreover, the Board specifically
found that March did not initiate violence with anyone, and someone in the
crowd plainly was the initial aggressor by throwing objects at March’s
truck and cracking his windshield. March acted in response to the actions
of the strikers, and the Board’s conclusion that he was injured in the
course of employment is a reasonable inference from the evidence before it.
II. Injuries “Arising Out of” Employment
To “arise out of” employment and therefore be compensable, there must
be a causal connection between the injury and the worker’s employment.
Milledge v. The Oaks, 784 N.E.2d 926, 929 (Ind. 2003). This is not a case
where the injury is claimed to originate with the worker’s preexisting
physical condition as in Kovatch v. A.M. Gen., 679 N.E.2d 940, 944 (Ind.
Ct. App. 1997). Nor is it an injury from an unexplained source as in
Milledge, 784 N.E.2d at 930. Rather, Global contends that March’s injuries
arose from his individual decision to exit the truck and confront the
strikers.
One basis to establish a causal connection is to show the injury
resulted from a risk specific to the employment. We recently held that
injury from a risk incidental to employment is sufficient to bring a claim
within workers compensation as “arising out of” the employment. Wine-
Settergren v. Lamey, 716 N.E.2d 381, 389 (Ind. 1999) (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”). When determining whether a risk or injury is
incidental to employment, a court will consider “the type of activity in
which the employee was engaged when injured and their relationship to: his
duties; the reasonableness of employee’s acts in relation to the sum total
of conditions and circumstances constituting the work setting at the time
of the 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.” Segally v. Ancerys, 486 N.E.2d 578, 581 (Ind.
Ct. App. 1985). The pivotal question is whether the person’s employment
increased the hazard that led to the injury. Id.
Global argues that March’s exchange with the strikers is not
compensable under the Act because March “confronted the strikers in a
personal capacity,” “had been expressly warned to avoid the picketers,” and
“went past the strikers, out of harm’s way, and then, on his own
initiative, in order to confront the strikers, backed his vehicle up into
the proximity of the strikers, and voluntarily got out of his vehicle to
confront the strikers.” This is presented in support of the contention
that the injury did not “arise out of” employment. We think it is a
restatement of the arguments directed to “in the course of” employment.
There is no doubt that the blows March suffered were the cause of his
injuries. The issue is whether the beating was received in the course of
employment. For the reasons given in Part I, we conclude that it was.
Insofar as this argument is a separate contention as to “arising from,” as
long as a causal connection exists between the injury and the person’s
employment, an employee may still recover for an injury sustained while
performing personal acts. Prater v. Ind. Briquetting Corp., 253 Ind. 83,
88, 251 N.E.2d 810, 812 (1969). The same chain of events that places his
injuries in the course of his employment also establishes that his injuries
arose from his employment. Indeed, it seems obvious that March 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.
In sum, the Worker’s Compensation Board found that March’s injury
arose out of and in the course of his employment. The evidence does not
lead clearly and inescapably to the opposite conclusion.
Conclusion
The decision of the Worker’s Compensation Board is affirmed.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.