FOR PUBLICATION                                     FILED
                                                  Mar 27 2012, 9:16 am


                                                         CLERK
                                                       of the supreme court,
                                                       court of appeals and
                                                              tax court




ATTORNEY FOR APPELLANT:                  ATTORNEY FOR APPELLEE:

RANDAL M. KLEZMER                        PAUL L. FIELDS
Klezmer Maudlin, P.C.                    The Law Offices of The Liberty
Indianapolis, Indiana                    Mutual Group
                                         Carmel, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

EARL ARNOLD, SR.,                        )
                                         )
     Appellant,                          )
                                         )
            vs.                          )      No. 93A02-1109-EX-874
                                         )
ROSE ACRE FARMS, INC.,                   )
                                         )
     Appellee.                           )


       APPEAL FROM THE INDIANA WORKER‟S COMPENSATION BOARD
                 The Honorable Linda P. Hamilton, Chairperson
                          Application No. C-192913


                               March 27, 2012

                         OPINION – FOR PUBLICATION

DARDEN, Judge
                             STATEMENT OF THE CASE

       Earl Arnold, Sr. (“Arnold”) appeals from the denial by the Worker‟s

Compensation Board of Indiana (“the Board”) of his claim under the Worker‟s

Compensation Act (“the Act”) alleging injuries arising out of and in the course of his

employment with Rose Acre Farms, Inc. (“Rose Acre”).

       We affirm.

                                         ISSUE

       Whether the Board erred in concluding that Arnold did not sustain an injury
       arising out of and in the course of his employment with Rose Acre.

                                        FACTS

       On June 25, 2006, Arnold was employed as a night security guard at Rose Acre‟s

Cortland facility. Arnold drove his automobile from his home to Rose Acre‟s location on

County Road 800 North (“the public road”). Arnold drove westbound on the public road

to a point in front of the gravel road that serves as the only entrance into Rose Acre‟s

Cortland facility.

       As Arnold crossed the center line of the public road and entered the eastbound

lane in making his left-hand turn into the Rose Acre facility, his automobile was struck

by a pick-up truck. Although the collision occurred on the public road, the vehicles came

to rest partially in the public road and partially in Rose Acre‟s driveway. The collision

resulted in multiple injuries to Arnold, including broken bones and cognitive impairment.




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      Arnold filed a claim with the Board alleging that the collision was an accident that

arose out of and in the course of his employment. After a hearing, a Single Hearing

Member made the following findings:

      3.      In general, for an accident to have occurred within the course of the
             employment, an injury must occur during work and on the
             employer‟s premises, and therefore, most injuries sustained in route
             to or from the workplace are not covered under workers‟
             compensation law.

      4.     Parking lots and employer owned driveways which provide ingress
             and egress are considered an extension of the employer‟s premises
             wherein an accident occurring in these locations is typically
             considered in the course of employment.

      5.     An accident occurring on a public thoroughfare, where the general
             public is exposed to the same risks as the employee, is not
             considered in the course of the employment. When the accident is
             not on the employer‟s premises, the Act only applies when there is
             an increased risk or the employee is engaged in activities incidental
             to the employment.

      6.     [Arnold‟s] accident did not occur on the employer‟s premises.
             Additionally, [Arnold] did not meet his burden of showing that the
             circumstances at the time of the accident created an increased risk
             causally related to the employment.

      7.     [Arnold] argued that [his] view could have been obstructed by a
             truck pulling out from the driveway of the employer causing an
             increased risk. However, Arnold was unable to testify as to this fact
             himself; the truck driver testified that he did not believe that
             [Arnold‟s] view would have been obstructed, and the police report
             which notes an obstructed view is hearsay evidence that cannot by
             itself support a finding on this matter.

      8.     In conclusion, because [Arnold] was subject to the risks of the
             general public and has been unable to show an increased risk, he was
             not in the course of his employment at the time of his accident and

                                           3
              therefore is not entitled to benefits or compensation under the
              Indiana Worker‟s Compensation Act.

(App. 7-9) (citations omitted). The Full Board adopted the Single Hearing Member‟s

findings and conclusions as its own.

                                        DECISION

       When reviewing a decision made by the Worker‟s Compensation Board, we

neither reweigh the evidence nor assess the credibility of the witnesses. Obetkovski v.

Inland Steel Industries, 911 N.E.2d 1257, 1260 (Ind. Ct. App. 2009), trans. denied. We

are bound by the factual determinations of the Board and may only consider errors in the

Board‟s conclusions. Id. While we are not bound by the Board‟s legal conclusions, we

will disturb the conclusions only if the Board incorrectly interpreted the Act. Id. In other

words, it is within our province to draw our own legal conclusions. Ag One Co-Op v.

Scott, 914 N.E.2d 860, 863 (Ind. Ct. App. 2009).

       The Act provides compensation for employees who suffer injuries that occur “by

accident arising out of and in the course of the employment . . . .” Ind. Code § 22-3-2-

2(a). “Arising out of” and “in the course of” are two separate and distinct elements: the

“arising out of” element refers to the causal connection between the accident and the

employment, while the “in the course of” element refers to the time, place, and

circumstances of the accident. Smith v. Bob Evans Farms, Inc., 754 N.E.2d 18, 24-25

(Ind. Ct. App. 2001), trans. denied. Both elements must be met before compensation is

awarded, and the person seeking compensation bears the burden of proving the elements.

Mueller v. Daimler Chrysler Motors Corp., 842 N.E.2d 845, 848 (Ind. Ct. App. 2006).

                                             4
       In Global Construction, Inc. v. March, 813 N.E.2d 1163, 1166 (Ind. 2004), our

supreme court stated that “in general, to arise „in the course‟ of employment, an injury

must occur during work and on the employer‟s premises.” The court went on to express

the general rule that “most injuries sustained on route to or from the workplace are not

covered.” Id. (citing Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation

Law, § 13.01, at 13-3 (2004)). The rule “is grounded in recognition that injuries suffered

while going to or coming from work are essentially similar to other injuries suffered off

duty away from the employer‟s premises and, like those other injuries, are usually not

work related.” 82 Am. Jur. 2d Worker’s Compensation § 271 (2011) (citing Bruck v.

Glen Johnson, Inc., 418 So.2d 1209, 1211 (Fla. Dist. Ct. App. 1982)). Thus, “the hazards

encountered by an employee while going to or coming from the regular place of

employment are not ordinarily incidental to the employment since the employee is

exposed to dangers and risks to which all traveling persons are exposed.”        1 Modern

Workers Compensation § 111.1 (1993).

       In Global, our supreme court cited Donahue v. Youngstown Sheet & Tube Co., 474

N.E.2d 1013, 1014 (Ind. 1985) as an example of the general rule. In Donahue, the Court

affirmed the denial by the Board of benefits for an injury an employee sustained on the

way home from work. The Court reasoned that the claimant had completed her duties

and clocked out and was crossing a public street when she was injured. The Court

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 1016.

                                             5
       The Global court also recognized that Indiana courts have developed exceptions to

the general rule. The court cited Reed v. Brown, 129 Ind. App. 75, 152 N.E.2d 257

(1958), the primary case relied upon by Arnold, as an example of an exception to the

rule. The Court noted that in Reed, this court

       early explained [that] “employment is not limited to the exact moment
       when the workman reached 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.”

Id. at 1167 (quoting Reed, 152 N.E.2d at 259) (citation omitted). The Court concluded

that under the reasoning in Reed “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.   In Reed, we held that worker‟s

compensation coverage applied after the claimant entered the employer‟s premises and

was injured on a railroad easement that bisected the private drive on the employer‟s

property.

       Arnold recognizes that the accident in the instant case did not occur in Rose

Acre‟s employer-controlled parking lot or private drive or on an easement bisecting Rose

Acre‟s property; however, he argues that the public road was an extension of Rose Acre‟s

operating premises. Specifically, he points to the stipulated evidence that Rose Acre‟s

property line “goes to approximately the center of the roadway and that the right of way

of the [public road] extends fifteen feet on each side of the center.” (Tr. 20). He also

points out that anyone going to Rose Acre‟s Cortland facility had to use the public road to

access Rose Acre‟s driveway. Arnold argues that because the gravel drive serving as

                                             6
Rose Acre‟s sole driveway ended at the public road, the road “was the sole ingress/egress

point for Rose Acre‟s employees to report to work, [and] both the eastbound and

westbound lanes in front of this entry point are premises used by Rose Acre‟s

employees.” Arnold‟s Br. at 10-11.

       We cannot say that the Board erred in concluding that the public road was not part

of Rose Acre‟s premises for purposes of the Act. Although Rose Acre technically owned

the soil beneath the public road, it had no control over the use of the road as a public

thoroughfare. As the Donahue court held in denying worker‟s compensation coverage,

“[The claimant was injured while on a public road, and the hazards and dangers of his

accident were common to all persons using the public road since [the employer] had no

control over the use of the public right-of-way by either [the claimant] or the public at

large.” 474 N.E.2d at 1016. All persons using a public road experience the hazard

occasioned by a left hand turn against traffic. We reject Arnold‟s argument that the left-

hand turn into Rose Acre distinguished his use of the public road from the use made by

the public at large.

       Arnold also argues that he is entitled to compensation under the reasoning of

Clemans v. Wishard Mem’l Hosp., 727 N.E.2d 1084 (Ind. Ct. App. 2000), trans. denied.

In Clemans, the employer owned the property on both sides of a public street and the

claimant, after completing her duties as an employee, was injured while crossing the

public street to get to the employer-owned parking garage. We held that Clemans was

entitled to worker‟s compensation because the injury did not occur while Clemans was a

member of the general public but as she crossed from her primary place of employment

                                            7
to the employer-provided parking garage. The holding in Clemans is consistent with a

second general rule that a claimant is eligible for worker‟s compensation benefits where

“the employee travels along or across a public road between two portions of the

employer‟s premises, whether going or coming, or pursuing other duties.” Larson, §

13.01(4) at 13-24.    In short, Clemans is consistent with the rule that an employee is in

the course of employment when he is traveling from one part of the employer‟s premises

to another. It does not stand for the proposition that an employee may be eligible for

benefits from injuries occurring when traveling a public road from his home to his

employer‟s sole piece of property. Thus, Clemans does not support Arnold‟s position

that he was injured “in the course of” employment as he traveled to work on a public

road.

                                       CONCLUSION

        Arnold has failed to show that the Board erred in determining that he was not

injured in the course of his employment with Rose Acres.1

        Affirmed.

BAKER, J., and BAILEY, J., concur.




1
 We make no determination as to whether Arnold‟s injuries “arose out of” his employment with Rose
Acres.

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