MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be
                                                                         Apr 25 2018, 8:41 am
regarded as precedent or cited before any
court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Jeanne M. Hamilton                                       Randal M. Klezmer
Indianapolis, Indiana                                    Indianapolis, Indiana

Miriam Rich
Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Dish Network,                                            April 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         93A02-1707-EX-1650
        v.                                               Appeal from the Worker’s
                                                         Compensation Board of Indiana
Ronda Marsh,                                             Full Worker’s Compensation
Appellee-Plaintiff                                       Board Linda Peterson Hamilton,
                                                         Chairman
                                                         Trial Court Cause No.
                                                         C-229269



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018            Page 1 of 14
[1]   Dish Network (Dish) appeals from the decision of the full Worker’s

      Compensation Board (the Board) awarding Ronda Marsh temporary total

      disability benefits for injuries Marsh suffered in an automobile accident that

      arose out of and in the course of her employment with Dish. Dish presents

      several issues for our review, which we consolidate and restate as: Is the

      Board’s decision supported by sufficient evidence? On cross-appeal, Marsh

      requests that her award be increased by ten percent rather than the statutory five

      percent.


[2]   We affirm.


                                        Facts & Procedural History1


[3]   Marsh was employed by Dish as a technician/installer with a hire date of

      September 17, 2012. Marsh’s work duties required her to drive a company

      vehicle. Dish required its drivers to watch driver safety videos, and Marsh

      signed log sheets reflecting that she had participated in such training. An

      express statement found in Dish’s employee handbook informed Dish

      employees that “[s]eatbelts must be worn while driving or riding in company

      vehicles.” Exhibit Volume at 134.


[4]   On January 4, 2015, Marsh was travelling on Interstate 70 in a Dish company

      vehicle when she lost control of the vehicle, veered off the roadway, and struck




      1
        We held oral argument in this matter at Blackford High School on April 6, 2018. We commend counsel for
      their excellent written and oral presentations. We also thank the staff and students for their hospitality.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018          Page 2 of 14
      an embankment that caused the vehicle to flip several times until it came to rest

      upright on all four tires. Marsh was ejected from the vehicle. Marsh was

      transported to Terre Haute Regional Hospital and then to Methodist Hospital

      in Indianapolis. Marsh suffered a right femur fracture with artery involvement,

      a left tibia fracture, bilateral rib fractures, vertebral body fractures, a concussion,

      and a grade 3 liver injury. The crash report indicates that at the time of the

      accident, it was snowing and ice was forming on the roadway surface.


[5]   On February 13, 2015, Dish filed a denial of worker’s compensation benefits for

      Marsh, and a week later, on February 20, 2015, Dish terminated Marsh’s

      employment. Dish based its denial of benefits and termination decision on

      Marsh’s knowing disregard of Dish’s written safety policies (driving/speed and

      failing to wear a safety appliance) and drug policy (marijuana). Marsh filed her

      Application for Adjustment of Claim with the Board on March 23, 2015. A

      hearing before a single hearing member was held on September 26, 2016.

      Abiding by the single hearing member’s request, Dish did not present live

      testimony from its expert witness, William Newberry, but rather, submitted

      Newberry’s report and deposition for the single hearing member’s

      consideration.


[6]   At the hearing, Marsh testified that she has no recollection of the crash and that

      she did not know if she was wearing her seatbelt. Marsh testified, however,

      that she had “a hematoma about the size of a grapefruit where the belt buckle

      was on my side” and that she had bruising around her pelvic area that was of

      the same dimensions as a seatbelt. Transcript at 14. A friend of Marsh’s also

      Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 3 of 14
      testified that she visited Marsh in the hospital and observed bruising across

      Marsh’s waist and from her left shoulder down to her right hip that she believed

      to be consistent with the dimensions of a seatbelt. In addition, Marsh admitted

      that she had received two prior infractions for failing to wear her seatbelt, but

      indicated that after the last one, she “made it a point to” wear her seatbelt. Id.

      at 12.


[7]   Also before the single hearing member were twenty exhibits stipulated to by the

      parties. The crash report prepared by a responding police officer and dated

      January 4, 2015, indicates that “NO RESTRAINT” was used by Marsh.

      Appellant’s Appendix Vol. 2 at 83. The officer preparing the report also noted that

      a nurse at Methodist Hospital advised that “there were no signs that [Marsh]

      was wearing a seatbelt at the time of the crash.” Id. at 82. Dr. Ralph

      Buschbacher performed an independent medical examination of Marsh and

      reviewed the discharge summary from Methodist Hospital and medical records

      from Terre Haute Regional Hospital, among others. Although he asserted no

      opinion as to whether Marsh was wearing a seatbelt, he did note that in the

      discharge summary from Methodist Hospital, it was indicated that “[p]er EMS

      report,” Marsh “was the restrained driver involved in a 5-car pileup with

      rollover.” Id. at 95. He also noted that the medical records from Terre Haute

      Regional Hospital stated that Marsh was “unrestrained in a motor vehicle

      accident.” Id. at 103.


[8]   Michael Fronckowiak, operations manager for Dish’s Terre Haute location at

      the time of Marsh’s accident, testified that part of Dish’s motor vehicle safety

      Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 4 of 14
       policy was that seatbelts must be worn while driving or riding in a Dish vehicle

       used for company business. He also testified that he visited Marsh in the

       hospital the day after the accident and that she had told him that “she was not

       wearing her seatbelt and she usually does not.” Transcript at 48.


[9]    The parties also stipulated to the report and deposition of William Newberry, a

       biomechanical engineer and accident reconstructionist. At the conclusion of

       the hearing before the single hearing member, Dish requested that the single

       hearing member consider such evidence. In his report, Newberry noted that he

       had examined the vehicle driven by Marsh and reviewed evidence related to the

       crash. Specifically, he collected data from the airbag control module (ACM)

       that indicated the driver’s seat belt was “UNBUCKLED” at the time of the

       accident. Exhibits at 92. His inspection of the driver’s seatbelt restraint system

       after the accident “revealed an absence of evidence indicative of occupant

       loading and use during the subject incident.” Appellant’s Appendix Vol. 2 at 149.

       During his inspection of the vehicle, Newberry noted contact abrasions on the

       interior headliner above the driver’s side window opening and on the interior

       driver side door. He opined that these markings were consistent with the

       occupant loading into the door during the rollover event and ejection through

       the driver’s side window.


[10]   As part of his report, Newberry set forth descriptions of the accident as found in

       various medical records. In all but the discharge summary from Methodist

       Hospital, notations in the medical records indicated that Marsh was an

       unrestrained driver. He also summarized the medical findings regarding

       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 5 of 14
       Marsh’s injuries. Considering all of the information before him, Newberry

       concluded that Marsh “was not utilizing the available 3-point seatbelt at the

       time” of the accident.” Id. at 150. He further opined:


               Based on the available information, including detailed
               examination of the subject vehicle, [Marsh’s] injuries most likely
               occurred as a result of loading she experienced during her
               unrestrained motion, projected contacts with the vehicle interior,
               and her ejection from the vehicle. . . . Had Ms. Marsh chosen to
               use the available and functional 3-point seatbelt restraint system,
               her excursion within the vehicle would have been limited; her
               projected contact and loading within the occupant compartment
               would have been mitigated; and her ejection and subsequent
               high-energy impact with the ground would have been prevented.


       Id. at 151.


[11]   On December 2, 2016, the single hearing member issued an order, including

       findings of fact and its conclusions. In its findings of fact, the single hearing

       member noted Marsh’s testimony regarding seat belt use as well as contrary

       information contained in Newberry’s report. The single hearing member then

       made the following conclusions:


               1.       [Marsh] sustained injuries when her work vehicle left the
                        roadway and rolled, ejecting her from the vehicle.


               2.       The weather conditions were very bad at the time of her
                        crash, so much so that the vehicle was left until conditions
                        improved so as not to place recovery personnel at risk.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 6 of 14
               3.       [Marsh] presented evidence from which it may plausibly
                        be concluded that [Marsh] was wearing her safety belt at
                        the time of the crash, including the pattern of bruising
                        most consistent with seat belt use as well as [Marsh]’s
                        statement of her practice of wearing a safety belt after prior
                        infractions for failure to wear a safety belt.


               4.       The Single Hearing Member does not find or conclude
                        that [Marsh] was not wearing a seatbelt at the time of her
                        crash and therefore [Dish] has not carried its burden that
                        [Marsh]’s compensation should be barred for failure to
                        wear a seatbelt.


               5.       The Single Hearing Member is likewise unpersuaded that
                        the presence in [Marsh]’s system of cannabinoids and
                        opiates, per a drug screen placed in evidence, as well as the
                        expert’s statement of potential effects from the same,
                        satisfy [Dish]’s burden on the issue of intoxication. The
                        Single Hearing Member finds and concludes that it is
                        more probable than not that [Marsh]’s wreck occurred due
                        to icy conditions on the roadway.


       Id. at 69-70. The Single Hearing Member concluded that Marsh was entitled to

       compensation for her temporary total disability for the period between the date

       of the accident and continuing until she attains maximum medical

       improvement.


[12]   On December 30, 2016, Dish requested review of the single hearing member’s

       decision. The Board held a review hearing on May 15, 2017. On June 21,

       2017, the Board issued its order adopting the single hearing member’s findings

       of fact and conclusions of law with one additional finding/conclusion:


       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 7 of 14
               Even if [Marsh] was not in fact wearing her safety belt at the time
               of the wreck, that fact would not have been the proximate cause
               of her injuries. There is no insufficient basis for expert opinion
               on this issue.


       Id. at 61. Dish now appeals. Additional facts will be provided as necessary.


                                           Discussion & Decision


[13]   The Worker’s Compensation Act (the Act) requires employers to compensate

       their employees for personal injury or death by accident arising out of and in

       the course of the employment. Waters v. Ind. State Univ., 953 N.E.2d 1108, 1112

       (Ind. Ct. App. 2011) (citing Ind. Code § 22-3-2-2(a)), 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.” Id. at 1112-13 (citation and quotation marks

       omitted). It is the claimant’s burden to prove a right to compensation under the

       Act. Smith v. Bob Evans Farms, Inc., 754 N.E.2d 18, 23 (Ind. Ct. App. 2001),

       trans. denied (2002).


[14]   The Act also sets forth numerous affirmative defenses to liability available to an

       employer that bar an employee’s worker’s compensation claim. Specifically,

       I.C. § 22-3-2-8 provides:


               No compensation is allowed for an injury or death due to the
               employee’s knowingly self-inflicted injury, his intoxication, his
               commission of an offense, his knowing failure to use a safety

       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 8 of 14
               appliance, his knowing failure to obey a reasonable written or
               printed rule of the employer which has been posted in a
               conspicuous position in the place of work, or his knowing failure
               to perform any statutory duty.


       The employer has the burden of proving an affirmative defense. Id.


[15]   Here, the parties do not dispute that Marsh’s injuries arose out of and occurred

       in the course of her employment with Dish. Rather, the issue presented relates

       to whether Dish established the affirmative defense that Marsh was not wearing

       her seatbelt at the time of the crash so as to bar Marsh from receiving worker’s

       compensation.


[16]   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. In

       reviewing a decision of the Board, we neither reweigh the evidence nor judge

       the credibility of witnesses; we determine only whether substantial evidence,

       together with any reasonable inferences that flow therefrom, support the

       Board’s findings and conclusions. Waters v. Ind. State Univ., 953 N.E.2d 1108,

       1112 (Ind. Ct. App. 2011), trans. denied. In doing so, we apply a two-tiered

       standard of review. Id.


               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
       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 9 of 14
               decision. 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. 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. We review the Board’s conclusions of law
               de novo.


       Id. (citations omitted).


[17]   Dish is appealing the Board’s determination that Dish did not carry its burden

       of proving that Marsh’s compensation should be barred for failure to wear a

       seatbelt. Dish is therefore appealing a negative judgment. When reviewing a

       negative judgment, we will not disturb the Board’s findings of fact unless we

       conclude that the evidence is undisputed and leads inescapably to a contrary

       result, considering only the evidence that tends to support the Board’s

       determination together with any uncontradicted adverse evidence. Perkins v.

       Jayco, 905 N.E.2d 1085, 1088 (Ind. Ct. App. 2009). We will construe the Act

       liberally in favor of the employee. Id. In other words, to prevail upon appeal,

       Dish is required to show that there was no probative evidence from which the

       Board might reasonably conclude as it did.


[18]   Dish challenges the Board’s determination in several respects. Dish argues that

       the Board relied on “insubstantial evidence and drew unreasonable inferences”

       in concluding that it did not meet its burden of proving that Marsh knowingly

       failed to use a safety appliance, i.e., a seatbelt. Appellant’s Brief at 19. In

       concluding that Marsh was wearing her seatbelt at the time of the crash, the


       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 10 of 14
       Board relied upon the testimony of Marsh and Marsh’s friend that Marsh had

       bruising in a pattern consistent with seat belt use. The Board also noted

       Marsh’s own testimony that it was “her practice of wearing a safety belt” after

       having received prior infractions for failure to use a seatbelt. Appellant’s

       Appendix Vol. 2 at 61. Dish asserts that this evidence is neither competent nor

       probative in value and that there is no other substantial evidence that directly

       supports or from which a reasonable inference can be made to affirm the

       Board’s conclusion. Dish maintains that the other evidence in the record is

       substantial and contrary to the Board’s conclusion.


[19]   Dish’s argument is simply a request to reweigh the evidence and judge the

       credibility of the witnesses. The Board identified the evidence concerning the

       pattern of bruising as support for its conclusion that Marsh was wearing her

       seatbelt at the time of the accident. Contrary to Dish’s claim, the testimony of

       Marsh and her friend as to the pattern of bruising seen on Marsh’s body, i.e.,

       bruising from the left shoulder to the right hip and bruising across the waist

       with a width of three inches, is competent evidence. Their testimony in this

       regard was not based on speculation, guess, or conjecture, but rather was based

       on their personal observations of the bruising pattern.


[20]   Also cited as supporting the Board’s decision was Marsh’s testimony that it was

       her habit to wear her seatbelt especially after having been cited for failing to

       wear her seatbelt. Dish asserts, “a reasonable person could only conclude from

       [the evidence that Marsh had previously been cited for not wearing her seatbelt]

       that it was customary for Marsh not to wear a seatbelt.” Appellant’s Brief at 19.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 11 of 14
       This is of course one inference that could be drawn from such testimony. The

       Board, however, acknowledged Marsh’s previous citations for failing to wear a

       seatbelt, and nevertheless, accepted her testimony that since her previous

       citations, it was “her practice of wearing a safety belt.” Appellant’s Appendix Vol.

       2 at 70. Although contrary to the inference espoused by Dish, the inference

       drawn by the Board is no less reasonable.


[21]   In sum, competent evidence supports the Board’s findings that Marsh sustained

       a pattern of bruising “consistent with seatbelt use” and the Board clearly found

       credible Marsh’s testimony that it was her habit to wear her seatbelt. Such

       findings support the Board’s conclusion that Marsh was wearing her seatbelt at

       the time of the crash. To find otherwise on appeal would require us to discount

       the testimony of Marsh and her friend and accept the evidence offered by Dish.

       Our standard of review precludes us from doing so.


[22]   Dish also argues that the Board applied the wrong standard when it found that

       it “may plausibly be concluded” that Marsh was wearing her seatbelt at the time

       of the crash. Appellant’s Appendix Vol. 2 at 70 (emphasis supplied). While

       perhaps not the best choice of words, it is clear from reading the order in its

       entirety that the Board considered all of the evidence before it and determined

       that the weight of the evidence supported the conclusion that Marsh was




       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 12 of 14
       wearing her seatbelt at the time of the crash. On appeal, we will not reweigh

       the evidence.2


[23]   On cross-appeal, Marsh requests that her worker’s compensation award be

       increased by ten percent. Ind. Code § 22-3-4-8(f) provides: “An award of the

       full board affirmed on appeal, by the employer, shall be increased thereby five

       percent (5%), and by order of the court may be increased ten percent (10%).”

       Generally, an order to increase the award by ten percent is not warranted unless

       the issues presented upon appeal are frivolous, appellate review is thwarted by

       the employer’s actions, or there has been an extended period of time within

       which the injured worker has been prevented from obtaining worker’s

       compensation benefits. Midwest Equip. & Supply Co. v. Garwood, 87 N.E.3d 33,

       37 (Ind. Ct. App. 2017) (citing Inland Steel Co. v. Pavlinac, 865 N.E.2d 690, 703

       (Ind. Ct. App. 2007)). As we are affirming the full Board’s award, Marsh’s

       award is to be increased by 5% as required by the Act.


[24]   In arguing for a ten percent increase, Marsh asserts that Dish has engaged in

       substantive and procedural bad faith. Marsh maintains that Dish’s sufficiency

       argument goes against our well-settled standard of review that prohibits this

       court from reweighing the evidence. Dish did present a sufficiency argument

       and, while the outcome was ultimately dictated by our standard of review, we




       2
        In its appellant’s brief, Dish also argued that it was denied due process when it was prevented from
       presenting live testimony from its expert witness. In response, Marsh argued that Dish waived this argument
       by failing to object to the procedure used by the Board. At oral argument, Marsh abandoned this argument.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018         Page 13 of 14
       cannot say that Dish’s argument was frivolous. Indeed, this was a close case

       and the evidence was conflicting. Further, the delay occasioned by Dish’s

       denial of Marsh’s worker’s compensation claim and appeal following the

       Board’s decision was not unreasonable. With regard to procedural bad faith,

       Marsh cites typographical errors and perceived violations of the appellate rules,

       none of which are so egregious as to warrant an increase of Marsh’s worker’s

       compensation award by ten percent.


[25]   In sum, substantial evidence and reasonable inferences support the Board’s

       conclusion that Marsh was wearing her seatbelt at the time of the accident, and

       thus, Dish did not meet its burden of proving an affirmative defense to Marsh’s

       worker’s compensation claim. We find no basis upon which to increase

       Marsh’s worker’s compensation award beyond five percent.


[26]   Judgment affirmed.


       Robb, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1707-EX-1650 | April 25, 2018   Page 14 of 14
