                                                                      Nov 26 2013, 5:43 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEY FOR APPELLEE:

JAMES E. AYERS                                VAN A. NATION
Wernle, Ristine & Ayers                       Nation Schoening Moll
Crawfordsville, Indiana                       Fortville, Indiana




                             IN THE
                   COURT OF APPEALS OF INDIANA

SALLY THOMPSON, Widow of                      )
Dennis Thompson,                              )
                                              )
      Appellant-Plaintiff,                    )
                                              )
             vs.                              )       No. 93A02-1302-EX-153
                                              )
YORK CHRYSLER,                                )
                                              )
      Appellee-Defendant.                     )


         APPEAL FROM THE INDIANA WORKER’S COMPENSATION BOARD
                                  Full Board
                        Application Number C-189114


                                  November 26, 2013

                             OPINION - FOR PUBLICATION

MAY, Judge
       Sally Thompson, widow of Dennis Thompson, appeals the determination by the

Indiana Worker’s Compensation Board (“Board”) that Dennis did not prove his injury was

compensable. Sally raises two issues, which we restate as whether evidence supported the

Board’s findings of fact and whether the findings supported its conclusions of law. We

reverse and remand.

                       FACTS AND PROCEDURAL HISTORY

       In 2007, Dennis was a parts clerk at York Chrysler, a car dealership. Dennis had pre-

existing medical conditions including a long-standing cardiac condition that required a

pacemaker.

       On August 2, 2007, a service technician at the dealership, Dan Blackford, went to the

parts department to obtain a part. Dennis advised him it was unavailable. Blackford began

verbally attacking Dennis, which Dennis believed affected his heart, and he obtained

authorization to leave work. As Dennis walked through the shop to his truck, Blackford

approached him again and continued the verbal altercation. According to Dennis, Blackford

placed both of his hands on Dennis’s chest, knocking him backwards onto the cement floor.

Blackford, on the other hand, told police he was headed back to the parts department when he

passed Dennis, the two argued, and Dennis turned towards him “flailing” his hands.

(Appellee’s App. at 26.) Blackford stated that he backed away, but when Dennis came

within “reaching distance,” Blackford blocked Dennis’s hand with his right hand and

extended his left arm causing Dennis to fall. (Id.)

       Dennis was taken to St. Clare Medical Center where he complained of a headache and

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pain in his left flank and shoulder. Following diagnostic tests, he was discharged with

instructions to follow up with his family physician as needed. Dennis sought no further

treatment for any condition related to the altercation for eight months, but then on April 22,

2008, he was evaluated at HOPE. counseling services.1

          Dennis filed an Application for Adjustment with the Worker’s Compensation Board

of Indiana on October 10, 2007. He claimed Blackford assaulted and injured him. He

requested medical expenses for his emergency room visit with St. Clare Medical Center,

temporary total disability until his completion of treatment at HOPE Counseling Services,

permanent partial impairment, and permanent total disability. Dennis claimed Blackford’s

assault caused or aggravated his mood disorder and depression.

          Sally filed an Amended Application for Adjustment of Claim on July 6, 2011,

notifying the Board that Dennis was deceased2 and she was pursuing benefits on his behalf.

A hearing before a single member of the Board was held on April 16, 2012. The single

member denied Sally’s amended claim on May 9, 2012. Sally filed an Application for

Review by Full Board on June 5, 2012.

          After a hearing, the Board adopted and revised the findings of the single member and

affirmed the denial of Sally’s Amended Application for Adjustment. The Board determined

Sally had not met her burden to show Dennis’s injuries arose out of and occurred in the



1
 Dennis sought counseling services to determine his need for treatment of depression, disability, and past
assault at his workplace.

2
    Dennis died on March 22, 2011, from causes unrelated to the incident.

                                                      3
course of his employment:

      1.     The Board is not persuaded that the altercation that occurred on August
             7, 2007 arose out of [Dennis’s] employment with [York]. In other
             words, the Board finds it equally likely [Dennis] was the initial
             aggressor in the altercation that occurred.

      2.     [Sally on behalf of Dennis] has further not met [the] burden of proof of
             establishing that the conduct occurred in the course of employment.
             The initial exchange between the parties occurred over parts and the
             evidence is equivocal on the relationship to employment. The later
             exchange clearly did not occur in the course of employment and
             stemmed from no duty owed the employer.

      3.     As a result, the medical care and treatment [Dennis] received at the
             emergency room that day are found not to be statutory medical
             expenses.

      4.     Even if there were a sufficient nexus between [Dennis’s] employment
             and the injuries he alleges he received on that day, the psychological
             injuries he later claims appear to be too remote from the occurrence to
             be related to his employment.

      5.     [Sally on behalf of Dennis] should take nothing by [her] Application for
             Adjustment of Claim filed October 10, 2007.

(Appellant’s App. at 42.)

                            DISCUSSION AND DECISION

      In Triplett v. USX Corp., 893 N.E.2d 1107, 1116 (Ind. Ct. App. 2008), we explained:

              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. Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d 1233, 1239
      (Ind. Ct. App. 2003). The Board is not obligated to make findings
      demonstrating that a claimant is not entitled to benefits; rather, the Board need
      only determine that the claimant has failed to prove entitlement to benefits.
      Outlaw v. Erbrich Products Co., 777 N.E.2d 14, 26 (Ind. Ct. App. 2002)
      (citing Hill v. Worldmark Corp./Mid America Extrusions Corp., 651 N.E.2d
                                             4
       785, 786 (Ind. 1995)), trans. denied (2003). “While this court is not bound by
       the Board’s interpretations of law, we should reverse only if the Board
       incorrectly interpreted the Worker’s Compensation Act.” Luz v. Hart
       Schaffner & Marx, 771 N.E.2d 1230, 1232 (Ind. Ct. App. 2002). “We will
       construe the Worker’s Compensation Act liberally in favor of the employee.”
       Id.

The Board’s findings of fact must be sufficiently specific to enable the reader to understand

the Board’s reasoning and the supporting evidence it used to reach the ultimate finding of

fact. Outlaw, 777 N.E.2d at 26. We first review the Board’s findings to determine if there is

any competent evidence of probative value in the record to support them. Triplett, 893

N.E.2d at 1116. We then determine whether “those findings are sufficient to support the

judgment.” Id. We may not reweigh evidence or assess witness credibility. Id.

       Employers are required by the Indiana Worker’s Compensation Act (“IWCA”) to

“provide their employees with compensation for personal injuries caused by an accident

arising out of and in the course of employment.” Outlaw, 777 N.E.2d at 25. To receive

worker’s compensation benefits, a plaintiff must prove both elements. Metro. Sch. Dist. v.

Carter, 803 N.E.2d 695, 697 (Ind. Ct. App. 2004). We review first the Board’s finding

Dennis’s injuries did not occur in the course of employment. “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. (quoting Milledge

v. Oaks, 784 N.E.2d 926, 929 (Ind. 2003).        An employer-controlled parking lot is an

extension of the employer’s premises. Lawhead v. Brown, 653 N.E.2d 527, 529 (Ind. Ct.


                                             5
App. 1995). For purposes of IWCA coverage, an employee is within his period of

employment and at a reasonable place for an employee when in the employer’s parking lot

directly after leaving work. See id. at 528 (the period of employment includes a reasonable

time after the employee engages in work and is leaving the workplace).

       The verbal confrontation between Dennis and Blackford began when Blackford

discovered a part he sought was unavailable, and this same confrontation continued in the

employer’s shop as Dennis was leaving work. The record contains no suggestion the shop

was not in a “reasonable place” for Dennis to be as he was leaving work, such that at all

relevant times, Dennis was “within his period of employment.” Furthermore, the physical

interaction stemmed from and was part of the work-related verbal altercation, as evidenced

by the parties’ stipulation there was only one altercation or incident.           Thus, the

uncontroverted evidence leads inescapably to the conclusion that this altercation occurred in

the course of Dennis’s employment, and the Board’s finding to the contrary must be

overturned. See Cavazos v. Midwest Gen. Metals Corp., 783 N.E.2d 1233, 1239 (we will not

disturb the Board’s findings unless the undisputed evidence leads to a contrary result).

       Next, we review the Board’s finding the injury did not arise out of Dennis’s

employment. An accident “arises out of” employment when “a causal nexus exists between

the injury sustained and the duties or services performed by the injured employee.” Metro.

Sch. Dist., 803 N.E.2d at 697 (quoting Milledge, 784 N.E.2d at 929). Injury from an assault

by a co-worker may be compensable under the IWCA. Global Constr., Inc. v. March, 813

N.E.2d 1163, 1165 (Ind. 2004). “In determining whether decedent’s injuries . . . arose out of

                                             6
his employment, it is necessary to determine whether or not the decedent was the aggressor.”

Armstead v. Sommer, 126 Ind. App. 273, 278, 131 N.E.2d 340, 343 (Ind. Ct. App. 1956).

“An employee injured in a fight with a fellow employee in which the employee is found to be

the aggressor cannot have compensation.” Berryman v. Fettig Canning Corp., 399 N.E.2d

840, 843 (Ind. Ct. App. 1980).

       The claimant, here Sally, bears the burden to show the “injury arose out of” Dennis’

employment. See A Plus Home Health Care, Inc. v. Miecznikowski, 983 N.E.2d 140, 143

(Ind. Ct. App. 2012) (claimant bears the burden of demonstrating injury arose out of and in

the course of his employment). The uncontradicted evidence shows the confrontation

between Dennis and Blackford stemmed from their work relationship.

       The Board found: “The initial exchange between the parties occurred over parts and

the evidence is equivocal on the relationship to employment. The later exchange clearly did

not occur in the course of employment and stemmed from no duty owed the employer.”

(Appellant’s App. at 42.) However, the Board could not find there were two altercations

because the parties stipulated there was only one altercation, calling it the “oral altercation,”

(id. at 5), or “the altercation[.]” (Id. at 6.) The Board’s parsing of the altercation into the

“initial exchange” and the “later exchange,” (id. at 42), was improper as a matter of law

because the “Board cannot permit a stipulation to stand and then find contrary to it.”

Princeton Mining Co. v. Earley, 51 N.E.2d 382, 383 (Ind. Ct. App. 1943).

       The evidence regarding who initiated the single altercation was that Blackford “started

into [a] real bad verbal rampage to [Dennis].” (Tr. at 71.) That indicates Blackford was the

                                               7
initial aggressor, and the evidence presented does not support the conclusions to the contrary

by the Single Board Member or the Board. An injury from an assault by a co-worker may be

compensable under the IWCA, Global Constr., Inc. v. March, 813 N.E.2d 1163, 1165 (Ind.

2004), and the only evidence presented was that Blackford was the aggressor.3 Thus we must

overturn the Board’s finding to the contrary. See Cavazos, 783 N.E.2d at 1239 (we will not

disturb the Board’s findings unless the undisputed evidence leads to a contrary result).

        For these reasons, we hold the Board’s findings did not support its conclusion Dennis’

injuries did not arise out of or occur in the course of his employment. Sally demonstrated

Dennis was entitled to benefits. We accordingly reverse and remand for determination of the

benefits she should receive on his behalf.

        Reversed and remanded.

BAILEY, J., and BRADFORD, J., concur.




3
  The parties argue at length about whether Dennis could obtain worker’s compensation benefits when the
Board found Dennis was “equally likely” as Blackford to be the aggressor. (Appellant’s App. at 42). As we
hold that finding rests on other findings that impermissibly contradicts the parties’ stipulations, we must also
overturn the finding that Dennis was equally likely to be the aggressor. Therefore, we need not decide whether
the ambiguous finding that the parties were equally likely to be the aggressor would justify denial of benefits.
See Berryman, 399 N.E.2d at 843 (employee cannot have compensation if “employee is found to be the
aggressor”).
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