FOR PUBLICATION

ATTORNEY FOR APPELLANT:                ATTORNEY FOR APPELLEE:

ROBERT M. EDWARDS, JR.                  KATHRYN A. MOLL
Jones Obenchain, LLP                    Nation Schoening Moll
South Bend, Indiana                     Fortville, Indiana
                                                                   FILED
                                                                Jul 27 2012, 9:26 am

                            IN THE                                      CLERK
                  COURT OF APPEALS OF INDIANA                         of the supreme court,
                                                                      court of appeals and
                                                                             tax court




DALE BRENON,                           )
                                       )
     Appellant,                        )
                                       )
            vs.                        )      No. 93A02-1202-EX-108
                                       )
THE FIRST ADVANTAGE CORP. d/b/a        )
OMEGA INSURANCE SERVICES,              )
                                       )
     Appellee.                         )


             APPEAL FROM THE WORKERS COMPENSATION BOARD
                            Cause No. C-177310



                              July 27, 2012


                      OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
       Dale Brenon appeals from a decision of the Worker’s Compensation Board of Indiana

(the Board) dismissing his Application for Adjustment of Claim (the Application) in favor of

The First Advantage Corporation d/b/a Omega Insurance Services (Omega). The sole issue

presented for our review is: Did the Board properly dismiss Brenon’s Application?

       We reverse.

       In August 2003, Brenon, then a resident of Wisconsin, was hired by Omega to

perform investigative services wherever Omega transacted business. On October 8, 2003,

Omega gave Brenon two investigative assignments that required him to travel to Indiana to

conduct surveillance. On October 9, 2003, Brenon, while driving in Lakeville, St. Joseph

County, Indiana, crossed the center line and caused a head-on collision with another vehicle.

       On June 21, 2004, Brenon filed a worker’s compensation claim against Omega in

Wisconsin. In that action Omega challenged whether Brenon was acting in the scope of his

employment when the accident occurred, whether Omega had worker’s compensation

insurance coverage in Wisconsin, and whether the Wisconsin Worker’s Compensation

Division had jurisdiction over Brenon’s worker’s compensation claim. Ultimately, however,

Omega negotiated settlement agreements with two of its worker’s compensation carriers

(Zenith Insurance Company and Zurich American Insurance Company) for a total lump-sum

payment of $100,000 compensation to Brenon to settle his worker’s compensation claim in

Wisconsin, so those matters were never litigated. The limited compromise agreement

between Brenon and Omega and Zenith Insurance Company was presented to and approved

by the Wisconsin Department of Workforce Development, Worker’s Compensation Division

on August 10, 2006. Subsequently, Omega and Zurich American Insurance Company

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executed a “Full and Final Compromise Agreement” with Brenon that was presented to and

approved by the Wisconsin Department of Workforce Development, Worker’s Compensation

Division on January 11, 2007.

          On October 3, 2005, prior to the acceptance of the settlement agreements in

Wisconsin, Brenon filed his Application with the Board seeking worker’s compensation

benefits from Omega for the same motor vehicle accident.1 On May 14, 2009, Omega filed a

motion to dismiss Brenon’s Indiana worker’s compensation claim, asserting that Brenon’s

Indiana claim was barred by the doctrine of res judicata and/or claim preclusion in light of

his submission to the jurisdiction of Wisconsin and the settlement of his worker’s

compensation claim in that State. On March 29, 2010, the single hearing member dismissed

Brenon’s claim without issuing findings of fact or conclusions of law. The Board adopted

the single hearing member’s decision in an order dated October 1, 2010.

          Brenon appealed, and, in a memorandum decision, another panel of this court

remanded the matter to the Board for “a statement of the specific findings of basic fact which

support its findings of ultimate fact and conclusion of law.” Brenon v. Advantage Corp.,

93A02-1010-EX-1172, slip op. at 3 (Ind. Ct. App. April 15, 2011). The Board then

remanded the matter for a hearing before a single hearing member. The parties waived the

hearing before the single hearing member, but presented additional evidence and arguments

that were ultimately used by the single hearing member in crafting findings of fact and

conclusions of law.


1
    In Indiana, Omega had worker’s compensation coverage through Lumbermens Mutual Casualty Company.


                                                  3
      The single hearing member concluded that Brenon’s claim for worker’s compensation

was barred by the doctrine of collateral estoppel. The Board affirmed the single hearing

member’s decision. The Board’s findings and conclusions pertinent to our review follow:

              13.     Plaintiff Dale Brenon chose to first pursue his claim against his
      employer Omega Insurance Services for worker’s compensation benefits in
      Wisconsin. While his claim for worker’s compensation benefits against his
      employer was pending in Indiana, he chose to conclude his litigation against
      that employer in Wisconsin by entering into a settlement agreement which
      according to Wisconsin law was submitted to the State of Wisconsin,
      Department of Workforce Development, Worker’s Compensation Division for
      its approval. That approval from the State of Wisconsin was issued and
      plaintiff received $100,000.00 from his employer and its worker’s
      compensation insurance carriers in Wisconsin. Thus, plaintiff Dale Brenon
      chose to submit to the jurisdiction of Wisconsin and its worker’s compensation
      system and laws in concluding his claim in Wisconsin through settlement
      approved by the Wisconsin Worker’s Compensation Division.
              14.     In both Wisconsin and Indiana, plaintiff is making a claim for
      worker’s compensation benefits for the same motor vehicle accident and both
      claims are against his employer Omega Insurance Services which was the
      defendant or respondent both in Wisconsin and in Indiana. Different insurance
      carriers for Omega Insurance Services are involved in each state.
              15.     Indiana Courts have recognized that insurance is defined as a
      contract whereby one undertakes to indemnify another against loss, damage or
      liability arising from an unknown or contingent event. Thus, Mr. Brenon’s
      claim for worker’s compensation benefits is against defendant employer
      Omega Insurance Services and not against individual insurance carriers. . . .
              16.     The issue of whether the payment or settlement of a worker’s
      compensation claim under the statute of one state bars a claim for worker’s
      compensation benefits in Indiana is a matter of first impression as the Indiana
      Workers Compensation Act and Indiana case law is silent on this question.
              17.     Courts in other states have recognized that when an employer or
      its worker’s compensation insurance carrier through unilateral initiative of the
      employer and/or the worker’s compensation carrier and without the
      employee’s knowledge or understanding, makes voluntary payments, those
      voluntary payments do not bar the employee from making a worker’s
      compensation claim for the same injury under the law of another state. See,
      Industrial Track Builders of America v. Lemaster, 429 S.W.2d 403 (Ky. 1968).
              18.     In this case, Mr. Brenon’s attorney and the insurance carriers for
      Omega Insurance Services in Wisconsin negotiated a lump sum settlement of
      the claim pending in Wisconsin and obtained approval of that settlement

                                              4
      pursuant to pursuant to Wisconsin law. The Administrative Law Judge of the
      State of Wisconsin, Department of Workforce Development, Workers
      Compensation Division issued an Order approving the settlement. Thus, the
      settlement of Mr. Brenon’s claim was not simply a “voluntary payment” as
      discussed in the Lemaster case, supra.
              19.     Having submitted to the jurisdiction of Wisconsin and obtaining
      approval of his settlement said approval being issued through an Award issued
      by an Administrative Law Judge of the State of Wisconsin, Department of
      Workforce Development, Workers Compensation Division, Brenon elected to
      submit his worker’s compensation claim under Wisconsin’s jurisdiction.
              20.     Based upon the foregoing, the doctrine of collateral estoppel
      would apply to preclude the re-litigation of this claim which plaintiff Dale
      Brenon has already had a full and fair opportunity to litigate the other worker’s
      compensation claim he filed in Wisconsin against the same parties on the same
      claim. Plaintiff Dale Brenon had a full and fair opportunity to litigate the facts
      and issues in his Wisconsin claim and chose to negotiate and enter into a
      settlement agreement with Omega Insurance Services through its worker’s
      compensation insurance carriers in Wisconsin whereby he was paid a lump
      sum of $100,000.00. Thus, Mr. Brenon had a full and fair opportunity to
      litigate the issues and facts in his Wisconsin claim before he proceeded to
      negotiate a settlement of that claim for a lump sum payment to him. Mr.
      Brenon and his attorney acquiesced to the jurisdiction of Wisconsin in seeking
      approval of the Administrative Law Judge of the State of Wisconsin,
      Department of Workforce Development, Workers Compensation Division
      pursuant to the Wisconsin worker’s compensation laws. . . .

Appellant’s Appendix at 7-10. Brenon now appeals the Board’s dismissal of his claim against

Omega for worker’s compensation benefits in Indiana.

      When the Board’s decision is challenged as contrary to law, the reviewing court

conducts a two-part inquiry into “the sufficiency of the facts found to sustain the

decision and the sufficiency of the evidence to sustain the findings of facts.” Ind.

Code Ann. § 22-4-17-12(f) (West, Westlaw current through legislation effective May

31, 2012). Where, as here, the facts are not in dispute and the matter for our review is

primarily a legal question, we do not grant the same degree of deference to the


                                              5
Board’s decision as we would if the issue were of fact, because law is the province of

the judiciary and our constitutional system empowers the courts to draw legal

conclusions. Roberts v. ACandS, Inc., 806 N.E.2d 1 (Ind. Ct. App. 2004) (citing

Walker v. Muscatatuck State Dev. Ctr., 694 N.E.2d 258 (Ind. 1998)).

       We begin by considering the case of Indus. Track Builders of Am. v. Lemaster, 429

S.W.2d 403 (Ky. Ct. App. 1968), that the Board relied upon for the proposition that

unilateral, voluntary payments made by the employer or employer’s worker’s compensation

insurance carrier to and without the knowledge or understanding of the injured employee is

the only circumstance where an employee can pursue a worker’s compensation claim for the

same injury under the laws of another state. Applying that principle to the facts of this case

the Board concluded that payment pursuant to the settlement agreements did not constitute

voluntary, unilateral payments, and therefore, Brenon was foreclosed from pursuing his

worker’s compensation claim in Indiana.

       Having reviewed the Lemaster case, we conclude that it stands for more than the

proposition relied upon by the Board. In that case, Lemaster was a resident of Indiana but his

employer was located in Kentucky. The employer had construction projects in Indiana as

well as Kentucky and Lemaster worked about 75% of the time in Indiana. Lemaster was

injured while working on a construction project in Indiana. Lemaster signed an agreement

with his employer’s worker’s compensation carrier to accept a stated amount of

compensation in accordance with the worker’s compensation laws of Indiana. He then filed a

claim for worker’s compensation benefits in Kentucky. The worker’s compensation board in


                                              6
Kentucky dismissed Lemaster’s claim, finding that he had submitted to the jurisdiction of

Indiana.

       The Kentucky Court of Appeals reviewed the history of the law with respect to

whether an award of worker’s compensation benefits in one state precludes recovery in

another state. The court found that the crux of the argument was whether, under the Full

Faith and Credit Clause of the United States Constitution, an award in one state precludes

recovery in another state. The Lemaster court observed that starting with Magnolia

Petroleum Co. v. Hunt, 320 U.S. 430 (1943), the U.S. Supreme Court suggested that an

award of worker’s compensation benefits in Texas precluded recovery of a second and

additional award in Louisiana for the same injury. The Lemaster court further observed,

however, that four years later, in Indus. Comm’n of Wis. v. McCartin, 330 U.S. 622 (1947),

the U.S. Supreme Court seemingly overruled Magnolia Petroleum, and answered the same

question by considering the intent of the worker’s compensation statutes and judicial

decisions in the state of the first award. Indus. Track Builders of Am. v. Lemaster, 429

S.W.2d 403 (citing Bowers v. Am. Bridge Co., 127 A.2d 580 (N.J. Super. 1956)). The

generally accepted view has thus become that “‘unless the statute or decisions of the state of

the first award expressly disallow a later award in another state which has an adequate

interest in the subject matter such an award may be made if credit is given for payments on

the first award.’” Indus. Track Builders of Am. v. Lemaster, 429 S.W.2d at 406 (quoting

Bowers v. Am. Bridge Co., 127 A.2d at 589).

       Contrary to the Board’s conclusion, the issue cannot be disposed of simply because

Brenon’s receipt of worker’s compensation benefits was the result of negotiated settlement

                                              7
agreements rather than a unilateral, voluntary payment by Omega and Zenith Insurance

Company/Zurich American Insurance Company. The statutes and judicial opinions of the

state of the first award must be examined to determine if they expressly disallow a later

award in a different state.

       Here, the parties have not provided us with any analysis of judicial opinions or

statutes in Wisconsin regarding whether such preclude an additional award in another state.

Our research has likewise revealed no judicial opinions or statutes in Wisconsin (or Indiana

for that matter) that prohibit claims in multiple states.

       Our best guidance comes from the McCartin case, cited in Lemaster, which is

procedurally similar to the situation presented in this case. In McCartin, as in this case, the

employer and employee entered into a negotiated settlement agreement that was approved by

the Industrial Commission of Illinois. That settlement agreement, like the settlement

agreements in this case, expressly reserved the employee’s right to assert any claims the

employee might have under the Worker’s Compensation Act of the state of Wisconsin. The

U.S. Supreme Court found that the reservation clause was consistent with the worker’s

compensation act of Illinois in that the type of award (i.e., through a settlement agreement)

did not foreclose an additional award under the laws of another state. The employee could

therefore pursue a worker’s compensation claim in Wisconsin.

       Here, the settlement agreements executed and approved in Wisconsin specifically

preserved Brenon’s claims against Omega in Indiana. To be sure, the limited compromise

agreement between Brenon and Omega and Zenith Insurance Company provided:



                                               8
       1) It is expressly understood and agreed that this compromise agreement does
       not provide a release or compromise of liability to Omega Insurance Services
       solely to the extent that Omega Insurance Services has coverage for payment
       of benefits pursuant to any worker’s compensation insurance policy provided
       by Kemper Insurance Companies, Zurich Insurance Companies, or any other
       workers compensation insurer not previously released herein.

Appellant’s Appendix at 23. Further, the following language was included in the “Full and

Final Compromise Agreement” between Brenon and Omega and Zurich American Insurance

Company:

       The parties further stipulate and agree that this full and final compromise
       agreement closes out any and all claims or potential claims the applicant has
       against only these respondents, (OMEGA INSURANCE SERVICES, THE
       FIRST AMERICAN CORP., FIRST ADVANTAGE CORP., ZURICH
       AMERICAN INSURANCE COMPANY), in all jurisdictions including, but
       not limited to Wisconsin, Indiana and Florida. In consideration for the above
       settlement, applicant has agreed to withdraw his Florida claim and will not
       amend his pending Indiana claim to include The First American Corporation or
       Zurich or its affiliated companies. The only claims that remain open would be
       claims for which there is insurance coverage for the employer by insurance
       companies not related to or owned by Zurich. All other claims are hereby
       closed. For example claims against Lumbermens or Kemper shall remain open
       in all jurisdictions.

Id. at 34. We have found no law, judicial or otherwise, that is inconsistent with the

reservation clauses. Pursuant to the terms of the settlement agreements, Brenon can pursue

his claim in Indiana and the Board is free under the Full Faith and Credit Clause to grant an

award of compensation in accord with the worker’s compensation laws of the State of

Indiana. See Indus. Comm’n of Wis. v. McCartin, 330 U.S. 622.

       We further note that the Board made no findings with respect to these reservation of

rights clauses found in the Wisconsin settlement agreements. Further, no challenge has been

made to the validity and/or enforceability of the settlement agreements. Omega was part of


                                             9
the negotiations that resulted in the settlement agreements and could have sought to include a

provision therein that would have precluded Brenon from pursuing his worker’s

compensation claim in Indiana. Instead, the settlement agreements that were negotiated by

Omega contained express provisions preserving Brenon’s right to pursue his worker’s

compensation claim in Indiana.

       We further conclude that the Board erred in relying upon the doctrine of

collateral estoppel as a basis for dismissing Brenon’s claim. “Collateral estoppel

operates to bar a subsequent relitigation of the same fact or issue where that fact or

issue was necessarily adjudicated in a former suit and the same fact or issue is

presented in the subsequent lawsuit.” Connecticut Indem. Co. v. Bowman, 652 N.E.2d

880, 882 (Ind. Ct. App. 1995) (quoting Sullivan v. American Cas. Co. of Reading, Pa.,

605 N.E.2d 134, 137 (Ind. 1992)).

       The Board concedes in its brief that there was no adjudication of facts leading to the

award of benefits in Wisconsin. Indeed, the award of benefits to Brenon was pursuant to

negotiated settlement agreements executed between Brenon and Omega and its worker’s

compensation insurance carriers in Wisconsin. Brenon did not have a full and fair

opportunity to litigate the issues in Wisconsin. There is therefore no basis for application of

the doctrine of collateral estoppel.

       In summary, the Board’s decision dismissing Brenon’s claim for worker’s

compensation benefits is not sustainable under the doctrine of collateral estoppel, the laws of

the State of Wisconsin, or Supreme Court precedent. Further, the Board’s decision gave no


                                              10
effect to the reservation of rights clauses contained in the settlement agreements. We

therefore reverse the Board’s dismissal of Brenon’s claim and remand for further

proceedings.

      Judgment reversed.

MAY, J., and BARNES, J., concur.




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