FOR PUBLICATION



ATTORNEY FOR APPELLANTS:                        ATTORNEY FOR APPELLEE:

JOSEPH BANASIAK                                 JOSEPH STALMACK
Highland, Indiana                               Joseph Stalmack & Associates, P.C.
                                                Munster, Indiana


                                                                           FILED
                                                                        Mar 08 2012, 9:21 am

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




GLADYS E. CURRY and                             )
THOMAS CURRY,                                   )
                                                )
      Appellants-Plaintiffs,                    )
                                                )
             vs.                                )      No. 45A04-1106-CT-290
                                                )
D.A.L.L. ANOINTED, INC.,                        )
                                                )
      Appellee-Defendant.                       )




                     APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable John R. Pera, Judge
                           Cause No. 45D10-0910-CT-190



                                      March 8, 2012

                               OPINION - FOR PUBLICATION

KIRSCH, Judge
       Gladys E. Curry (“Gladys”) and her husband, Thomas Curry (“Thomas”)(collectively

“the Currys”), appeal from the trial court’s order dismissing their complaint for injuries and

loss of consortium against D.A.L.L. Anointed, Inc. (“D.A.L.L.”). The Currys present several

issues for our review, the following of which is dispositive: Whether the trial court erred by

dismissing the complaint for lack of subject matter jurisdiction based on the exclusivity

provision of the Indiana Worker’s Compensation Act (“the Act”).1

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       The facts that were before the trial court follow. D.A.L.L. operated a McDonald’s

Restaurant located in Hammond, Indiana. Gladys was employed by D.A.L.L. at that

McDonald’s Restaurant. On October 15, 2007, Gladys went to the restaurant to attend an

employee meeting scheduled to begin at 5:00 p.m., but arrived at the restaurant at

approximately 3:45 p.m. in order to eat a meal beforehand. Some of the employee meetings

were mandatory, but Gladys could not recall whether that meeting was mandatory. She was

not scheduled to work and did not clock in as she would if she were working. Gladys could

not recall if she received any pay for attendance at the meeting.

       After ordering her meal, Gladys went outside the restaurant to eat her food in an

outdoor dining area. While Gladys was outdoors, other employees gathered for the upcoming

meeting. Gladys finished her meal and got up to take her tray and garbage to an outdoor

garbage can when she tripped over a hazard on the ground in the outdoor dining area. Gladys



       1
           See Ind. Code § 22-3-2-6.

                                              2
fell to the ground and sustained injuries. A fellow employee drove Gladys to a hospital for

treatment for her injuries.

         D.A.L.L.’s worker’s compensation insurance carrier requested that she treat with a

physician selected by the carrier and she did so. The medical bills related to that treatment

were paid by D.A.L.L.’s worker’s compensation insurance carrier, as were additional medical

bills submitted by Gladys. The worker’s compensation insurance carrier also made wage

payments to her.

         The Currys filed a complaint against D.A.L.L., McDonald’s Corporation, and

Franchise Realty Corporation, seeking damages for injuries sustained by Gladys and for

medical expenses incurred by Thomas for her care and for his related loss of consortium

claim.    By stipulation of the parties, McDonald’s Corporation and Franchise Realty

Corporation were dismissed from the case. D.A.L.L. filed a motion to dismiss pursuant to

Indiana Trial Rule 12(B)(1) and designated evidence in support. The Currys filed their

response to the motion to dismiss and a list of evidence. D.A.L.L. filed a reply in support of

the motion to dismiss and moved to strike certain portions of Gladys’s affidavit to the extent

it conflicted with her deposition testimony, which was also designated. The trial court held a

hearing on the motion to dismiss and entered an order dismissing the complaint with

prejudice, but did not rule on the motion to strike. The Currys now appeal.

                              DISCUSSION AND DECISION

         The Currys appeal claiming that the trial court erred by dismissing their complaint

with prejudice. In particular, the Currys argue that: (1) Gladys never made a worker’s

compensation claim with D.A.L.L. or its worker’s compensation carrier for her injuries; (2)

                                              3
Gladys was not on the clock with her employer at the time of her injury; and (3) although

Gladys came to the restaurant for the employer-called meeting, her injuries occurred before

the meeting had begun and while she was having a meal outside the scope of the

employment-related activity.

       Our Supreme Court has stated the following regarding the standard of review in

situations such as this:

       When an employer defends against an employee’s negligence claim on the
       basis that the employee’s exclusive remedy is to pursue a claim for benefits
       under the Indiana Worker’s Compensation Act, the defense is properly
       advanced through a motion to dismiss for lack of subject matter jurisdiction
       under Indiana Trial Rule 12 (B)(1). 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.
        In addition, the trial court may weigh the evidence to determine the existence
       of the requisite jurisdictional facts.

       ***

       A review of the case authority shows that the standard of appellate review for
       Trial Rule 12(B)(1) motions to dismiss is indeed a function of what occurred in
       the trial court. That is, the standard of review is dependent upon: (i) whether
       the trial court resolved disputed facts; and (ii) if the trial court resolved
       disputed facts, whether it conducted an evidentiary hearing or ruled on a
       “paper record.”

       If the facts before the trial court are not in dispute, then the question of subject
       matter jurisdiction is purely one of law. Under those circumstances no
       deference is afforded the trial court’s conclusion because appellate courts
       independently, and without the slightest deference to trial court determinations,
       evaluate those issues they deem to be questions of law. Thus, we review de
       novo a trial court’s ruling on a motion to dismiss under Trial Rule 12(B)(1)
       where the facts before the trial court are undisputed.

       If the facts before the trial court are in dispute, then our standard of review
       focuses on whether the trial court conducted an evidentiary hearing. Under
       those circumstances, the court typically engages in its classic fact-finding
       function, often evaluating the character and credibility of witnesses. Thus,

                                                4
       where a trial court conducts an evidentiary hearing, we give its factual findings
       and judgment deference. And in reviewing the trial court’s factual findings
       and judgment, we will reverse only if they are clearly erroneous. Factual
       findings are clearing erroneous if the evidence does not support them, and a
       judgment is clearly erroneous if it is unsupported by the factual findings or
       conclusions of law.

       However, where the facts are in dispute but the trial court rules on a paper
       record without conducting an evidentiary hearing, then no deference is
       afforded 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. 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 a paper record.

GKN Co. v. Magness, 744 N.E.2d 397, 401 (Ind. 2001) (internal quotations and citations

omitted).

       In this case, the trial court held a hearing on the motion to dismiss, but did not receive

additional evidence. The point of contention between the parties was whether Gladys’s

injuries arose out of her employment or occurred in the course of the employment. Thus, in

dismissing the Currys’ complaint, the trial court resolved factual disputes on a paper record.

We, therefore, review de novo the trial court’s ruling here.

       “[A] motion to dismiss for lack of subject matter jurisdiction presents a threshold

question concerning the court’s power to act.” Perry v. Stitzer Buick GMC, Inc., 637 N.E.2d

1282, 1286 (Ind. 1994). Actions taken by a court lacking subject matter jurisdiction are void.

Id. The opponent of subject matter jurisdiction carries the burden of proving that the

Worker’s Compensation Board and not the trial court had jurisdiction over the matter. Id.

       The Act provides the exclusive remedy for recovery of personal injuries arising out of

and in the course of employment. Ind. Code § 22-3-2-6. “If the Act covers an injury, the


                                               5
courts have no jurisdiction to entertain common law claims against the employer or a fellow

employee.” Knoy v. Cary, 813 N.E.2d 1170, 1171 (Ind. 2004). 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. 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.

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.

Id.

          Case law involving whether injuries that occurred during after-hours work activities

were compensable has evolved since the enactment of the Act. Our Supreme Court noted in

Knoy, that in the early days of worker’s compensation, injuries sustained by employees

during after-hours work activities were for the most part not compensable. 813 N.E.2d at

1171. In 1957, the Supreme Court allowed recovery under the Act for an employee’s death

that occurred at an after-hours activity sponsored by the employer. Noble v. Zimmerman, 237

Ind. 556, 146 N.E.2d 828 (1957). The rationale for allowing recovery was that “employers

are more and more utilizing recreational programs for their employees . . . in aiding and

promoting better business relations with persons in their employ.” Id. at 569-70, 146 N.E.2d

at 834.

          In a subsequent opinion by this court, Ski World, Inc. v. Fife, 489 N.E.2d 72, 73 (Ind.

Ct. App. 1986), recovery under the Act was allowed for injuries sustained by an employee

during an after-hours party for employees that was sponsored by the employer. We explained

                                                 6
that the rationale for recovery in Noble did not depend upon whether attendance at the party

was required, but on the connection between the employee’s employment and the party. Id.

at 77. The mandatory nature of the after-hours work-related activity is not required in order

for there to be recovery under the Act; rather the focus is on the connection between the

employer’s interests in improving the business by holding the after-hours work-related

activity and the employee’s employment. Knoy, 813 N.E.2d at 1172. If that is the situation,

then the after-hours work-related activity may be incidental to the employee’s employment.

Id.

       In this case, D.A.L.L. held an employee meeting attended by several employees, such

as Gladys, who were not “on the clock.” Gladys’s deposition testimony revealed that

meetings were held regularly at the restaurant, some of which were mandatory, while others

were not. Some of the meetings led by the managers involved discussions of customer

complaints and how to improve the business in response to those complaints, while others

involved issues related to the operation of the restaurant, e.g., cleanliness issues. Gladys

stated that she was on the premises to attend the meeting, but arrived early to eat a meal

beforehand. Other employees were also present in advance of the meeting. We conclude

that the trial court did not err by dismissing the complaint. The connection between

D.A.L.L.’s interest in improving the business by holding employee meetings and Gladys’s

presence on the premises as an employee waiting for the meeting to begin, places jurisdiction

of her claim for compensation for injuries sustained while on those premises squarely within

the Act. Because of our resolution of this issue we do not address the other issue raised.

       Affirmed. BARNES, J., and BRADFORD, J., concur.

                                             7
