                                                                FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                     Jan 30 2013, 9:56 am
court except for the purpose of
establishing the defense of res judicata,
                                                                     CLERK
collateral estoppel, or the law of the case.                       of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEYS FOR APPELLANT:                        ATTORNEY FOR APPELLEE:

LIBBY VALOS MOSS                                CRAIG W. GRAHAM
MARK D. GERTH                                   Jeffersonville, Indiana
Kightlinger & Gray, LLP
Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

KINDRED NURSING CENTERS, LTD                    )
PARTNERSHIP d/b/a WEDGEWOOD                     )
HEALTHCARE,                                     )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 93A02-1207-EX-553
                                                )
LINDA DAVIS,                                    )
                                                )
       Appellee-Plaintiff.                      )


       APPEAL FROM THE WORKER’S COMPENSATION BOARD OF INDIANA
                 The Honorable Linda Peterson Hamilton, Chairman
                               Cause No. C-209389


                                     January 30, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                                STATEMENT OF THE CASE

       Appellant-Defendant, Kindred Nursing Center, Ltd Partnership, d/b/a Wedgewood

Healthcare (Wedgewood), appeals the Worker’s Compensation Board’s (Board)

determination that Appellee-Plaintiff’s, Linda Davis (Davis), injury arose out of her

employment with Wedgewood.

       We affirm.

                                          ISSUE

       Wedgewood raises one issue on appeal, which we restate as: Whether the Board

erred in its determination that Davis’ injury arose out of her employment.

                        FACTS AND PROCEDURAL HISTORY

       Davis works as a charge nurse at Wedgewood, a long-term care facility. As a

charge nurse, she is responsible for administering medications, charting, paperwork, and

various other tasks. During working hours, Wedgewood requires its charge nurses to

wear scrubs and rubber soled shoes with a back.

       On March 4, 2011, Davis finished her shift and walked to the front office area to

make copies of patients’ weight charts. After placing copies in Wedgewood’s dietician’s

mailbox, she returned to the nurses’ station. Noticing that her shoe had become untied,

she lifted her foot onto a chair, tied her shoe and, while bringing her foot down, she

caught her foot on the chair and fell. As a result of the fall, Davis suffered a fracture of

her right knee cap (patella).




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       On March 31, 2011, Davis filed an application for adjustment of claim with the

Board alleging that her injuries arose out of her employment. On November 10, 2011,

the Single Hearing Member conducted a hearing and determined that Davis’ injury was

caused by an act incidental to her employment, or at the very least, the accident presented

a neutral risk and was therefore compensable. On December 2, 2011, Wedgewood

appealed the decision to the Board. On June 14, 2012, after a hearing, the Board issued

its Order, affirming the Single Hearing Member and stating in pertinent part:

       3. [Davis’] action of tying her shoe was incidental to her employment. The
       employees at Wedgewood are required to wear nursing scrubs, specific type
       of shoe, and follow a certain dress code. It would be detrimental to the
       employer if their employees were walking around the facility with their
       shoes untied or with an unkempt [sic] appearance when residents and
       family members evaluate the facility based partially on its employees.
       Therefore, [Davis’] decision to tie her shoe is a risk associated with her
       employment. Additionally, [Davis] is on her feet walking throughout the
       day making it more likely for her shoes to come untied and tying her shoes
       would be needed to complete her job duties.

(Appellant’s App. p. 003).

       Wedgewood now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                                  I. Standard of Review

       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. Bertoch v. NBD Corp., 813 N.E.2d 1159, 1160 (Ind.

2004). In so doing, we apply a two-tiered standard of review. Ag One Co-op v. Scott,



                                            3
914 N.E.2d 860, 862 (Ind. Ct. App. 2009). 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 decision. Id. at 863. 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. Ind. Mich. Power Co. v. Roush, 706 N.E.2d 1110, 1113

(Ind. Ct. App. 1999). 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. Id. We review the Board’s conclusions of law de novo.

Bertoch, 813 N.E.2d at 1160. An award made by the Board that is based on competent

evidence will not be reversed on appeal. Blau-Knox Foundry Mill v. Dacus, 505 N.E.2d

101, 102 (Ind. Ct. App. 1987).

                         II. Injuries Arising Out Of Employment

      Contesting the Board’s determination, Wedgewood asserts that Davis’ injury did

not result from a risk incidental to her employment but rather derived from a personal

risk which is not compensable under the Worker’s Compensation Act.

      The Worker’s Compensation Act authorizes 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. 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. Oaks, 784 N.E.2d 926, 929 (Ind. 2003). 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


                                            4
the duties of employment or while engaged in doing something incidental thereto. Id.

Both requirements must be met before compensation is awarded, and neither alone is

sufficient. Id. The person seeking worker’s compensation benefits bears the burden of

proving both elements. Id. The parties agree that Davis’ injury occurred during the

course of her employment; therefore, the sole contention before us relates to whether her

injury arose out of her employment with Wedgewood.

      Commenting on the causal connection necessary to show that an accidental injury

arises out of employment, our supreme court has stated that “[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.” Wine-Settergren v. Lamey, 716

N.E.2d 381, 389 (Ind. 1999).      The risks incidental to employment fall into three

categories: (1) risks distinctly associated with employment, (2) risks personal to the

claimant, and (3) neutral risks which have no particular employment or personal

character. Roush, 706 N.E.2d at 1114. Risks that fall within categories one and three are

generally covered under the Indiana Worker’s Compensation Act.            However, risks

personal to the claimant, those “caused by a pre-existing illness or a condition unrelated

to employment” are not compensable. Milledge, 784 N.E.2d at 926.

      Wedgewood argues that Davis’ injury resulting from tying her shoe was a personal

risk, unrelated to her employment, and thus not covered by the Worker’s Compensation

Act. We disagree. At the time of the accident, Davis was working for Wedgewood’s

benefit, was required to wear rubber soled shoes with a back, and she had to tie her


                                            5
shoelaces when they became untied on the job. Therefore, Davis’ act of tying her shoes

was a risk that was related to her employment and the resulting fall was incidental to her

employment. There is no evidence that Davis had any pre-existing injuries to her knee or

that she contributed anything personal or private to the injury. In light of the evidence

presented, the Board properly determined that Davis’ injury is covered by the Worker’s

Compensation Act.

                                    CONCLUSION

   Based on the foregoing, we affirm the Board’s determination that Davis’ injuries

arose out of her employment.

      Affirmed.

BAKER, J. and BARNES, J. concur




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