Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of                     Feb 13 2014, 8:59 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                         ATTORNEY FOR APPELLEE:

MARK W. BAEVERSTAD                              M. CATHERINE FANELLO
ANDREW L. PALMISON                              TRACEY STEELE SCHAFER
Rothberg Logan & Warsco, LLP                    LORIS ZAPPIA
Fort Wayne, Indiana                             Anderson Agostino & Keller, P.C.
                                                South Bend, Indiana


                             IN THE
                  COURT OF APPEALS OF INDIANA

WABASH COUNTY HOSPITAL FOUNDATION, )
INC. d/b/a WABASH COUNTY HOSPITAL and )
CAROLE RILEY,                         )
                                      )
       Appellants-Defendants,         )
                                      )
              vs.                     )                 No. 85A04-1306-CT-291
                                      )
HAI LEE,                              )
                                      )
       Appellee-Plaintiff.            )


                    APPEAL FROM THE WABASH CIRCUIT COURT
                      The Honorable Robert R. McCallen, III, Judge
                            Cause No. 85C01-1205-CT-424


                                    February 13, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellants-Defendants, Wabash County Hospital Foundation, Inc. (Hospital), and

Carol Riley (Riley) (collectively, Appellants), appeal the trial court’s grant of Appellee-

Plaintiff’s, Hai Lee, M.D. (Dr. Lee), motion to correct error, determining that Dr. Lee’s

injuries did not fall within the exclusive jurisdiction of the Indiana Worker’s

Compensation Act.

      We affirm.

                                         ISSUES

      Appellants raise one issue on appeal, which we restate as the following two issues:

   (1) Whether the trial court appropriately placed the burden of proof that Dr. Lee’s

      injuries fell within the application of the Indiana Worker’s Compensation Act on

      Appellants; and

   (2) Whether the trial court acquired subject matter jurisdiction upon its finding that

      Dr. Lee’s injuries did not fall within the exclusive jurisdiction of the Indiana

      Worker’s Compensation Act.

                        FACTS AND PROCEDURAL HISTORY

      Dr. Lee is an eighty-nine-year-old anesthesiologist, who had surgery privileges at

the Hospital.    In April of 2010, medical personnel at the Hospital initiated an

investigation into Dr. Lee’s ability to continue practicing anesthesiology based on some

concerns raised by her co-workers. Dr. Lee was offered a leave of absence by the

Hospital, which suspended her surgery privileges, while her fitness to practice medicine

was evaluated.


                                            2
       On June 18, 2010, Riley, a nurse employed by the Hospital, received a phone call

from an individual in Human Resources, advising her that Dr. Lee was in the recovery

room area.     As Riley approached the surgery area, she noticed Dr. Lee exit the

physician’s lounge and enter the surgery area. As Dr. Lee was checking her blood

pressure, Riley accosted Dr. Lee, inquiring why she was there and asking her to leave.

Riley reached out and touched Dr. Lee’s left arm to physically remove her from the area.

As a result, Dr. Lee’s arm required arthroscopic repair. Subsequently, and that same day,

the Hospital, by hand delivered mail, ordered Dr. Lee to remain off the Hospital’s

premises, citing her behavior as disruptive and unprofessional.

       On May 16, 2012, Dr. Lee filed a complaint against Appellants seeking damages

for injuries sustained as a result of Riley’s assault or battery.       On June 22, 2012,

Appellants filed a motion to dismiss for lack of subject matter jurisdiction, claiming that

the complaint fell within the province of the Worker’s Compensation Act. In response,

Dr. Lee filed a motion for leave to file an amended complaint, which was granted by the

trial court on July 16, 2012. In her amended complaint, Dr. Lee averred that she was

seeking damages from Riley’s assault and battery while she was an invitee of the

Hospital. In addition, Dr. Lee complained that the Hospital is liable based on negligence,

premises liability, and vicarious liability for the incident involving its employee, Riley.

       On August 22, 2012, the trial court conducted a telephonic hearing on Appellants’

motion to dismiss, as well as on Appellants’ argument that the amended complaint should

not relate back to the original complaint. The following day, the trial court found that the

amended complaint related back to the original complaint; however, the trial court


                                              3
requested the parties to brief the issue of the exclusivity of the Worker’s Compensation

Act. On December 3, 2012, the trial court summarily granted Appellants’ motion to

dismiss. On December 27, 2012, Dr. Lee filed a motion to correct error. On May 14,

2013, after an oral argument, the trial court issued an order, granting Dr. Lee’s motion to

correct error and vacating its prior order in Appellants’ favor, thereby effectively

reinstating Dr. Lee’s cause. The trial court noted that “[i]n reviewing the prior ruling, the

[c]ourt cannot conclude, on the record before the [c]ourt, that [Appellants] met [their]

burden that [Dr. Lee’s] injuries were within the exclusive jurisdiction of the Indiana

Worker’s Compensation Act.” (Appellants’ App. p. 167).

       On June 13, 2013, the trial court granted Appellants’ motion to certify the trial

court’s order for interlocutory appeal. On July 19, 2013, we accepted jurisdiction.

       Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

       The Appellants contend that the trial court erred in its determination that Dr. Lee’s

cause falls outside the application of the Worker’s Compensation Act. In ruling on a

motion to dismiss for lack of subject matter jurisdiction, the trial court may consider not

only the complaint and motion but also any affidavits or evidence submitted in support.

GKN Co. v. Magness, 744 N.E.2d 397, 400 (Ind. 2001). In addition, the trial court may

weigh the evidence to determine the existence of the requisite jurisdictional facts. Id.

       On appeal, the standard of review for an Indiana Trial Rule 12(B)(1) motion to

dismiss is a function of what occurred in the trial court. Id. That is, the standard of

review is dependent upon: (i) whether the trial court resolved disputed facts; and (ii) if


                                             4
the trial court resolved disputed facts, whether it conducted an evidentiary hearing or

ruled on a “paper record.” Id. Accordingly, where, as here, the facts before the trial

court are in dispute and the trial court did not conduct an evidentiary hearing but ruled on

a paper record, no deference is afforded to the trial court’s factual findings or judgment

because, under those circumstances, a court of review is “in as good a position as the trial

court to determine whether the court has subject matter jurisdiction.” Id. Thus, we

review de novo a trial court’s ruling on a motion to dismiss where the facts before the

court are disputed and the trial court rules on the paper record. Id.

                                    I. Burden of Proof

       Focusing on the trial court’s order, which noted that the trial court could not

conclude “that [Appellants] met [their] burden that [Dr. Lee’s] injuries were within the

exclusive jurisdiction of the Indiana Worker’s Compensation Act,” Appellants first

contend that the trial court improperly shifted the burden to them to establish the

applicability of the Worker’s Compensation Act on Dr. Lee’s claims. (Appellants’ App.

p. 167). Appellants claim instead that Dr. Lee had retained the burden because the

allegations of her complaint demonstrated the existence of an employment relationship. .

       Discussing the parties’ burden of proof within the premise of Indiana’s Worker’s

Compensation Act, our supreme court held in GKN Co.:

       When the plaintiff’s own complaint recites facts demonstrating the
       employment relationship and its role in the injuries alleged, the burden
       shifts to the plaintiff to demonstrate some grounds for taking the claim
       outside the Worker’s Compensation Act. Hence, when challenging the trial
       court’s jurisdiction, the employer bears the burden of proving that the
       employee’s claim falls within the scope of the Act unless the employee’s
       complaint demonstrates the existence of an employment relationship. Only


                                              5
       where the employee’s complaint demonstrates the existence of an
       employment relationship does the burden then shift to the employee to
       show some ground for taking the case outside of the Act.

Id. at 404 (internal citations omitted).

       Here, Dr. Lee filed her original complaint on May 16, 2012. On July 16, 2012,

Dr. Lee amended her complaint, which the trial court deemed to relate back to the date of

filing of the original complaint and which thus, effectively replaced the original

complaint. In her amended complaint, Dr. Lee averred that “[o]n or about June 18, 2010,

[Dr. Lee] was an employee of [the Hospital], but was on a leave of absence from her

employment.” (Appellants’ App. p. 46). She also noted that “[o]n June 18, 2010, [Dr.

Lee] was an invitee of [the Hospital].” (Appellants’ App. p. 46). Thus, while Dr. Lee

indicated that she was an employee at the Hospital and alluded to a possible employment

relationship, at the same time, she also established grounds for taking the claim outside

the realm of the Act by referencing her potential status of an invitee and her leave of

absence from her employment. Accordingly, as Dr. Lee’s amended complaint suggested

injuries suffered outside the scope of the Act, the burden shifted back to Appellants, as

challengers of the trial court’s jurisdiction, to nonetheless demonstrate the applicability of

the Worker’s Compensation Act. Therefore, we cannot conclude that the trial court

improperly placed the burden on Appellants.

                               II. Worker’s Compensation Act

       Next Appellants contend that the trial court erred when it determined that Dr.

Lee’s cause fell outside the exclusive jurisdiction of Indiana’s Worker’s Compensation




                                              6
Act. Specifically, Appellants maintain that as Dr. Lee’s injury arose during the course of

her employment at the hospital, the Act must be applied.

       The Worker’s Compensation Act provides the exclusive remedy for recovery of

personal injuries or death by accident arising out of and in the course of employment.

Ind. Code § 22-3-2-6. “If the Act covers an injury, the courts have no jurisdiction to

entertain common law claims against the employer or fellow employee.” Knoy v. Cary,

813 N.E.2d 1170, 1171 (Ind. 2004). For an injury to be compensable, the injury must

both arise out of the employment and arise in the course of the employment. Conway ex

rel. Conway v. School City of East Chicago, 734 N.E.2d 594, 598 (Ind. Ct. App. 2000).

Under the Act, both requirements must be met before compensation is awarded, and

neither alone is sufficient. Id.

       An accident leading to injury occurs “in the course of” employment when it occurs

at the time and place of employment while an employee is fulfilling his or her

employment duties. Knoy, 813 N.E.2d at 1171. Turning to the facts before us, it is

established that although she was still formally employed with the Hospital at the time of

the injury, Dr. Lee was on a leave of absence with her surgery privileges suspended.

While Riley affirms that Dr. Lee was “told not to be in the surgery area, including the

recovery room,” Marilyn J. Custer Mitchell (Mitchell), President/CEO of the Hospital,

attested that “Dr. Lee was never told by [the Hospital] that she could not be on [the]

premises while on a leave of absence until after the alleged incident giving rise to her

lawsuit.” (Appellants’ App. pp. 158, 69). Even though the facts are contradictory with

respect to Dr. Lee’s presence on the Hospital’s premises, it is nevertheless clear that she


                                            7
was not fulfilling her employment duties as she had been placed on a leave of absence

pending evaluation and her surgery privileges had been suspended.

       An injury “arises out of” employment if there is a causal connection between the

injuries sustained by the employee and the duties or services performed by the injured

employee.   Knoy, 813 N.E.2d at 1171.        Id. That causal connection exists when a

reasonable person would consider the injury to be the result of a risk incidental to

employment or where there is a connection between the employment and the injury. Id.

Typically, the risks incidental to employment fall into three categories:        (1) risks

distinctly associated with employment; (2) risks personal to the claimant; and (3) risks of

neither distinctly employment nor distinctly personal in character. Burdette v. Perlman-

Rocque Co., 954 N.E.2d 925, 930 (Ind. Ct. App. 2011). Risks that fall within categories

numbered one and three are generally covered under the Indiana Worker’s Compensation

Act. Id. However, risks personal to the claimant, those caused by a pre-existing illness

or condition unrelated to employment, are not compensable. Id.

       Here, Dr. Lee sustained her injuries while she was in the recovery area, checking

her blood pressure. Riley stated that as she was trying to persuade Dr. Lee to leave the

recovery area, she “reached out with [her] right arm and touched [Dr. Lee’s] left arm, but

she pulled the arm away from me[.]” (Appellants’ App. p. 159). Dr. Lee mostly

confirms Riley’s statement, but also attested that “Riley grabbed and yanked my right

arm repeatedly with great force.” (Appellants’ App. p. 81). At the time of the injury, Dr.

Lee was not performing services for the Hospital or caring for patients, but was merely

tending to her own health. As such, the injury is not incidental to her employment but


                                            8
rather, a risk personal to her for which there is no recourse under the Indiana Worker’s

Compensation Act.1

        Therefore, based on the facts before us, we conclude that Dr. Lee’s injuries 2 did

not arise out of the employment with the Hospital, nor were they inflicted during the

course of her employment. As a result, the Indiana Worker’s Compensation Act is not

applicable, and the trial court acquired subject matter jurisdiction over Dr. Lee’s cause.

                                            CONCLUSION

        Based on the foregoing, we affirm the trial court’s denial of Appellants’ motion to

dismiss for lack of subject matter jurisdiction.

        Affirmed.

VAIDIK, C.J. concur

MAY, J. concurs in result with separate opinion




1
  Appellants also assert that because Riley and Dr. Lee were in the “same employ” Dr. Lee’s separate
claim against Riley is barred by the exclusivity provisions of the Act. (See Appellants’ Br. pp. 20-21).
The Worker’s Compensation Act does not apply in a suit against a co-employee if it is established that the
injury was not “by accident,” that it did not “arise out of his employment,” or that it did not “occur in the
course of his employment.” Tippmann v. Hensler, 716 N.E.2d 372, 375 (Ind. 1999). Furthermore, even
if the Act applies, its exclusive remedy provision will not bar a common law suit against an employee
who was not “in the same employ” as the plaintiff when the injury occurred. Id. Because we concluded
that Dr. Lee’s injury did not arise out of her employment or during the course of her employment, Dr. Lee
can pursue a common law suit against Riley.
2
  Because we decide this case based on the fact that Dr. Lee’s injuries did not arise during the course of
her employment with the Hospital, we do not need to address Appellants’ argument that Riley inflicted
the injury by accident.


                                                     9
                            IN THE
                  COURT OF APPEALS OF INDIANA

WABASH COUNTY HOSPITAL               )
FOUNDATION, INC. d/b/a WABASH COUNTY )
HOSPITAL and CAROLE RILEY,           )
                                     )
      Appellants-Defendants,         )
                                     )
             vs.                     )                 No. 85A04-1306-CT-291
                                     )
HAI LEE,                             )
                                     )
      Appellee-Plaintiff.            )
                                     )


MAY, Judge, concurring in result.

       I believe the trial court erred to the extent it placed on the Hospital the burden to

prove Lee’s injuries were within the exclusive jurisdiction of the Worker’s Compensation

Act. That burden should have remained with Lee, as her own complaint recited facts

demonstrating the employment relationship and its role in the injuries alleged. However,

I agree Lee’s lawsuit can go forward because she established her injury did not arise out

of, nor was it in the course of, her employment. I therefore concur in the result.

       The majority correctly notes that when the plaintiff’s own complaint recites facts

demonstrating the employment relationship and its role in the injuries alleged, the burden

shifts to the plaintiff to demonstrate some grounds for taking the claim outside the

Worker’s Compensation Act. Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d 1282, 1286


                                             10
(Ind. 1994), reh’g denied. The majority acknowledges Lee “alluded” to a “possible”3

employment relationship, (Slip op. at 6) (footnote added), but then determines she

established grounds for taking her claim outside the Act in two ways: she referenced 1)

“her potential status as an invitee” and 2) “her leave of absence from her employment.”

Id.

       The majority does not explain why either allegation establishes grounds for taking

Lee’s complaint outside the Act. But if the reference to Lee’s leave of absence is meant

to suggest Lee was not employed by the Hospital at the time of her injury, I must

disagree. I would decline to hold an individual may be placed on a leave of absence by

an entity that is not her employer. The legal definition of “leave of absence” is “[a]

worker’s temporary absence from employment or duty with the intention to return.”

Porter v. Bd. of Ret. of Orange Cnty. Employees’ Ret. Sys., 165 Cal. Rptr. 3d 510, 515

(Cal. Ct. App. 2013) (quoting Black’s Law Dict. 510 (9th ed. 2009)); see also Lewis v.

Unemployment Ins. Appeals Bd. 128 Cal. Rptr. 795, 802 (Cal. App. Ct. 1976) (“‘leave of

absence’ means that the employee is given permission to be absent from work for a

certain time at the end of which the employee will return to his employment status”)

(emphasis added). Lee’s reference to her leave of absence therefore confirms, and does

not negate, her status as an employee of the Hospital. For purposes of placement of the

initial burden of proof, it is not apparent why that allegation in her complaint establishes

grounds for taking her claim outside the Worker’s Compensation Act.


3
  The complaint stated “on or about [the date of the incident] Hai Lee was an employee of Wabash
County Hospital.” (App. at 46.)


                                              11
       Nor does Lee’s reference to “her potential status as an invitee.” (Slip op. at 6.)

The majority offers no explanation and points to no authority to support the premise that

a person’s status as an “invitee” necessarily negates her status as an employee subject to

the Act. I am aware of no such authority. Rather, some decisions indicate a person can

be both. See, e.g., Pleasant v. Mathias, 145 S.E.2d 680, 682 (S.C. 1965) (Appellants

assume [Pleasant] was only an invitee because his service was being gratuitously

performed. Such fact does not mean that he was not an employee, with respect to the

duties owed him.”); Tuminello v. Willis Knighton Med. Ctr., 597 So. 2d 1089, 1092 (La.

Ct. App. 1992), writ denied, (Brown, J., dissenting) (noting situations where defendant

might claim tort immunity under “circumstances when the invitee is also an employee”)

       Lee’s complaint explicitly states she was an employee of the hospital on the date

she “was assaulted and/or battered by Carole Riley, an employee of Wabash County

Hospital.” (App. at 46.) As those allegations in her complaint established both her

employment relationship with the Hospital and its role in the she injuries alleged, Perry,

637 N.E.2d at 1286, the burden was on Lee to demonstrate some grounds for taking the

claim outside the Worker’s Compensation Act. Id.

       While I believe the trial court erred to the extent it placed the burden of proof on

the Hospital, I agree with the majority that the trial court’s denial of the Hospital’s

motion to dismiss was not error. Lee’s complaint was sufficient to allege her injuries did

not arise out of her employment, nor were they incurred in the course of her employment.

I accordingly concur in the result.




                                            12
