MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                     Jun 09 2017, 8:54 am

court except for the purpose of establishing                      CLERK
the defense of res judicata, collateral                       Indiana Supreme Court
                                                                 Court of Appeals
                                                                   and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEY FOR APPELLEE
Randal M. Klezmer                                        Paul T. Fulkerson
Nathan B. Maudlin                                        Skiles Detrude
Klezmer Maudlin, P.C.                                    Indianapolis, Indiana
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Pamela McBride,                                          June 9, 2017
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         93A02-1612-EX-2920
        v.                                               Appeal from the Indiana Worker’s
                                                         Compensation Board
Midwest Estate Buyers, LLC,                              The Honorable Linda Peterson
Appellee-Defendant.                                      Hamilton, Chairman
                                                         Application No.
                                                         C-229470



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 93A02-1612-EX-2920| June 9, 2017    Page 1 of 8
                                Case Summary and Issue
[1]   Pamela McBride appeals the decision of the Indiana Worker’s Compensation

      Board (“Board”) denying her claim for worker’s compensation benefits.

      McBride raises two issues for our review which we consolidate and restate as

      whether McBride’s injury arose out of her employment. Concluding her injury

      arose out of her employment, we reverse and remand.



                            Facts and Procedural History
[2]   McBride is an employee of Midwest Jewelers & Estate Buyers, a jewelry store

      in Zionsville, Indiana. Although not required to do so by management,

      McBride often wears nice clothing and tries to look stylish for customers of the

      store.


[3]   On March 3, 2015, McBride was preparing her lunch when a customer arrived

      at the store. As McBride walked towards the customer, the zippers on the

      inside of her boots hooked together causing her to trip and fall. McBride

      attempted to brace her fall by grabbing a nearby chair. When she grabbed the

      chair, it swiveled and she fell to the floor. McBride suffered a right femoral

      neck fracture which required a hip replacement.


[4]   In April of 2015, McBride filed her Application for Adjustment of Claim with

      the Board. A hearing before a Single Member of the Board was held on May

      26, 2016. The Single Member denied McBride’s claim on August 27, 2016, and

      McBride filed her Application for Review by the full Board shortly thereafter.

      Court of Appeals of Indiana | Memorandum Decision 93A02-1612-EX-2920| June 9, 2017   Page 2 of 8
      After a hearing before the full Board, the Board adopted the findings of the

      Single Member and affirmed the denial of McBride’s Application for

      Adjustment of Claim. The Board determined McBride did not meet her burden

      to show her injury arose out of her employment. McBride now appeals.



                                 Discussion and Decision
                                     I. Standard of Review
[5]   On appeal from a decision of the full Board, we are bound by the Board’s

      factual determinations. Morris v. Custom Kitchen & Bath, 64 N.E.3d 912, 916

      (Ind. Ct. App. 2016), trans. denied. 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 the one reached by the Board. Id.


[6]   Generally, the issue of whether an employee’s injury or death arose “out of and

      in the course of” his or her employment is a question of fact to be determined

      by the Board. Ind. Mich. Power Co. v. Roush, 706 N.E.2d 1110, 1113 (Ind. Ct.

      App. 1999), trans. denied. But when the facts relating to the question of liability

      under the Worker’s Compensation Act (“Act”) are undisputed and lead to only

      one reasonable inference, the determination of whether an injury or death arose

      “out of and in the course of” employment is a question of law. Sanchez v.

      Hamara, 534 N.E.2d 756, 758 (Ind. Ct. App. 1989), trans. denied. We may

      reverse the Board’s decision on a question of law if the undisputed evidence

      reveals that the Board’s decision is an incorrect interpretation of law. Duvall v.


      Court of Appeals of Indiana | Memorandum Decision 93A02-1612-EX-2920| June 9, 2017   Page 3 of 8
      ICI Americas, Inc., 621 N.E.2d 1122, 1124 (Ind. Ct. App. 1993). The burden

      rests with the claimant to prove a right to compensation under the Act. Morris,

      64 N.E.3d at 916.


                             II. Arising Out of Employment
[7]   The Act mandates 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(a). An injury 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.” Morris,

      64 N.E.3d at 916. An injury arises out of employment when a causal nexus

      exists between the injury sustained and the duties or services performed by the

      employee. Id.


[8]   The parties do not dispute McBride’s injury occurred in the course of her

      employment with Midwest Jewelers. Rather, the question is whether

      McBride’s injury arose out of her employment. In order to meet her burden of

      proving that her injury arose out of her employment, McBride was required to

      establish the existence of a causal nexus between the injury she suffered and the

      duties or services she performed for Midwest Jewelers. See id. The required

      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


      Court of Appeals of Indiana | Memorandum Decision 93A02-1612-EX-2920| June 9, 2017   Page 4 of 8
       employment occurs.” Pavese v. Cleaning Solutions, 894 N.E.2d 570, 575 (Ind. Ct.

       App. 2008).


[9]    Risks incidental to employment fall into three categories: (1) risks distinctly

       associated with employment, (2) risks personal to the claimant, and (3) risks

       neither distinctly employment nor distinctly personal in character. Milledge v.

       Oaks, 784 N.E.2d 926, 930 (Ind. 2003), superseded on other grounds by Ind. Code §

       23-3-2-2(a). “Risks that fall within categories numbered one and three are

       generally covered under the . . . Act.” Id. Those risks included within the first

       category are “[a]ll the things that can go wrong around a modern factory, mill,

       mine, transportation system, or construction project . . . [that are] the result of

       conditions inherent in the work environment.” Id. (alteration in original)

       (internal quotation marks and citations omitted). Risks included within the

       second category, risks personal to the claimant, are those “caused by a pre-

       existing illness or condition unrelated to employment,” and are not

       compensable. Id. (citation omitted). However, risks included within the third

       category are those intermediate risks that lie between distinctly personal risks or

       distinctly employment related risks. These risks may be a combination of

       employment and personal elements or a lesser degree of either element.


[10]   In concluding McBride was not entitled to receive Worker’s Compensation

       benefits, the Board adopted the conclusion of the Single Member that

       “[McBride’s] fall and injuries were not as a result of her employment. . . .

       [McBride’s] injuries resulted from a personal risk. She selected and purchased

       these boots on her own. She chose to wear them on the day of the incident

       Court of Appeals of Indiana | Memorandum Decision 93A02-1612-EX-2920| June 9, 2017   Page 5 of 8
       when she was not required to do so.” Appellant’s Appendix, Volume II at 7.

       McBride argues the Board erred in concluding her injury resulted from a risk

       personal to her.1 We agree.


[11]   In Pavese, an employee of a cleaning company was found unconscious on the

       floor of a business where she had been sent to provide cleaning services. 894

       N.E.2d at 573. A medical examination resulted in a preliminary diagnosis of

       “an unexplained syncopal episode,” but the physician also could not rule out

       the possibility of a fall due to slipping on the concrete floor. Id. at 574. Upon

       appeal following the denial of worker’s compensation benefits, this court held

       that—although Pavese’s injury had occurred in the course of her employment—

       she had failed to meet her burden of proving that her injury arose out of her

       employment. Id. at 578. This court noted the Single Hearing member found

       Pavese experienced an unexplained syncopal episode, such was “a personal

       event,” and Pavese had not met her burden of proving she slipped on the

       concrete floor. Id.


[12]   Unlike the factual scenario in Pavese, McBride testified her fall and injury was

       not the result of a pre-existing illness or condition, and there is no evidence to

       the contrary. Therefore, her fall was not a personal risk. See Metro. Sch. Dist. of

       Lawrence Twp. v. Carter, 803 N.E.2d 695, 699 (Ind. Ct. App. 2004) (noting that




       1
         McBride also asserts the placement of the chair increased the dangerous effect of her fall and is subject to an
       increased risk analysis. See Kovatch v. A.M. General, 679 N.E.2d 940, 943-44 (Ind. Ct. App. 1997), trans.
       denied. However, McBride simply produced no evidence, through testimony or otherwise, that her
       employment or the placement of the chair increased the dangerous effects of her fall.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1612-EX-2920| June 9, 2017                   Page 6 of 8
       tripping is not a personal risk where it does not involve a pre-existing illness or

       condition). Although her choice of clothing and footwear is a personal choice

       and in this case was not dictated by company policy, an employee of a fine

       jewelry store would certainly be required to wear some form of footwear.

       Further, McBride testified she often dressed up and tried to look stylish for her

       work which involved meeting with customers. Therefore, we think McBride’s

       case falls within the third category, those risks neither distinctly employment

       related nor distinctly personal in character.


[13]   As noted above, our standard of review permits us to disturb the Board’s factual

       findings if the evidence is undisputed and leads inescapably to a result contrary

       to that reached by the Board. We think this is such a case and we hold

       McBride’s injury arose out of her employment with Midwest Jewelers. While

       her injury was the result of a personal choice of attire, the evidence was

       undisputed McBride dressed up and attempted to look stylish for work.

       Accordingly, we find McBride’s injury stems from a risk that is neither

       distinctly employment related nor distinctly personal in character; therefore, her

       injury falls within the third category and is covered by the Act. See A Plus Home

       Health Care, Inc., v. Miecznikowski, 983 N.E.2d 140, 145 (Ind. Ct. App. 2012)

       (holding risks falling within category three are incidental to employment and

       covered by the Act), trans. denied. We therefore reverse the Board’s decision

       and remand for further proceedings.



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 93A02-1612-EX-2920| June 9, 2017   Page 7 of 8
[14]   The facts of this case lead inescapably to the conclusion that McBride’s injury

       arose out of her employment with Midwest Jewelers, a decision contrary to the

       Board’s. Accordingly, we reverse the Board’s decision and remand for further

       proceedings.


[15]   Reversed and remanded.


       Vaidik, C.J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1612-EX-2920| June 9, 2017   Page 8 of 8
