                                                                       FILED
                                                                  Dec 07 2016, 9:24 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEY FOR APPELLEE
Robert W. Rock                                           Doris L. Sweetin
Gerling Law Offices, P.C.                                Allen & Newman, PLLC
Evansville, Indiana                                      Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John C. Morris,                                          December 7, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         93A02-1601-EX-179
        v.                                               Appeal from the Indiana Worker’s
                                                         Compensation Board
Custom Kitchen & Baths,                                  The Honorable Linda Peterson
Appellee-Defendant.                                      Hamilton, Chairman
                                                         Application No.
                                                         C-219200



Robb, Judge.




Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016                 Page 1 of 14
                                Case Summary and Issue
[1]   John Morris is a licensed building contractor in Vanderburgh County, Indiana,

      and the sole proprietor of Custom Kitchen & Baths (“CKB”). Morris often uses

      his contractor’s license, skills, tools, and vehicle in volunteer community

      projects, particularly with the Boy Scouts of America, in which his son is a

      participant. In August 2012, Morris suffered an injury while constructing a 10’

      x 10’ garden storage shed (“Olivet Project”) for Olivet Presbyterian Church

      (“Church”) in Evansville, Indiana. The Olivet Project was constructed as a

      volunteer Boy Scout project and Morris was not compensated for its

      construction. Following his injury, Morris filed claims with CKB’s worker’s

      compensation carrier, the Church’s insurance company, and the liability carrier

      for the Boy Scouts, all of whom paid money to or on behalf of Morris. In 2013,

      Morris filed an Application for Adjustment of Claim with the Indiana Worker’s

      Compensation Board (“Board”), which a Single Hearing Member denied.

      Morris then appealed to the full Board, which affirmed the Single Member’s

      decision. Morris appeals from the Board’s denial of his Application for

      Adjustment of Claim, raising one issue for review: whether his injury arose out

      of and in the course of his employment. CKB cross-appeals, seeking

      reimbursement of monies paid to or on behalf of Morris. Concluding Morris’

      injury arose out of and in the course of his employment, and is therefore

      covered by Indiana’s Worker’s Compensation Act, we reverse the decision of

      the Board and remand for a determination of disability benefits.




      Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 2 of 14
                            Facts and Procedural History                              1




[2]   In 2011, Morris obtained his general contractor’s license and formed his sole

      proprietorship, CKB. Through his business, Morris designs and renovates

      kitchens and baths from start to finish. Prior to 2011, Morris owned a business

      called Envision Designs and sold cabinets and countertops.


[3]   As a licensed contractor, Morris often performs volunteer community service

      projects involving carpentry or construction, for which he is not compensated,

      either through his church or the Boy Scouts. Morris’ son, Brad, was a Boy

      Scout and Morris was an Assistant Scout Manager. Morris testified that since

      2003, he has performed thirteen Boy Scouts’ community service projects in

      Vanderburgh County and Warrick County; through these community service

      projects, he donates the building materials as well as his skills, tools,

      contractor’s license, and vehicle. While it was not his “primary concern for

      doing the [community service] projects,” Morris stated he receives a substantial

      amount of business and goodwill from these projects. Transcript at 45. He

      testified,


              [I]t was a matter of working with other scout families and
              working with friends of scout families and by doing that I
              obtained a lot of business . . . . [B]ut just in the general course of
              the project you meet a lot of parents and they [ask] what do you
              do and, of course, some of them know and some of them don’t.




      1
        We held oral argument in this case on November 3, 2016, in Indianapolis, Indiana. We commend counsel
      for their excellent arguments.

      Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016                 Page 3 of 14
              And they engage me and [say] hey can you come by and look at
              this project for me and I just—a lot of what do you call it—
              networking . . . .


      Tr. at 44-45. At the Single Member Hearing, Morris produced three witnesses

      who testified they hired Morris to perform work, for which he was paid, after

      observing his work on certain community service projects. For example, David

      Hayhurst, a Boy Scout acquaintance of Morris, testified he “had seen [Morris]

      do a fair bit of work through the [Boy] Scouts and seemed like he really knew

      what he was doing. So, that’s why we went ahead and [hired Morris].” Id. at

      19. In addition, Amy Johnson, a member of Morris’ church, testified she hired

      Morris to perform work at her home because she “knew of [Morris’] skills and

      what he did through [Boy Scouts]—known him for years and years through

      there. That he was a contractor, designed kitchens, did all that kind of work.”

      Id. at 34.


[4]   In 2012, Morris and his son approached the congregation of the Church

      regarding the Olivet Project. They promoted the Olivet Project to the Church

      as a Boy Scout venture, and the Church approved the Olivet Project and its

      design. Brad planned a significant amount of the Olivet Project, and the

      Church did not employ, compensate, or contract with Morris or CKB, and had

      no control or input over the Olivet Project except for approving the project and

      its design. Further, the Boy Scout troop posted a plaque next to the project

      stating the Olivet Project was constructed as a Boy Scout project.




      Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 4 of 14
[5]   However, the Olivet Project was constructed under Morris’ supervision and

      could not have been performed without his skills, tools, materials, and

      contractor’s license. Benjamin Miller, the Vanderburgh County Building

      Commissioner, testified the Olivet Project could only be constructed if Morris

      was a properly licensed building contractor in Vanderburgh County. Moreover,

      Vanderburgh County ordinances required Morris to display his contractor’s

      license number on his work vehicle and carry his license with him at the

      construction site. If Morris failed to obey the ordinances, he would be subject

      to a fine. Morris, through his business account, purchased and donated

      $1,244.46 in building materials for the Olivet Project. When Morris prepared

      his tax return, he deducted the cost of the donated materials as a business

      expense.


[6]   On August 6, 2012, while working on the Olivet Project, Morris fell from the

      roof of the storage shed and suffered a fracture to his right leg. As a result of

      the fractured leg, Morris underwent three separate surgeries. Following his

      injury, Morris filed a claim with CKB’s worker’s compensation insurance

      carrier, West Bend Mutual Insurance Company. West Bend paid Morris

      $5,757.14 in temporary total disability benefits and $87,654.60 for his medical

      treatment. Morris also submitted a claim to Church Mutual Insurance, the

      Church’s liability insurance carrier. Church Mutual paid an additional $10,000

      on behalf of Morris. The Boy Scouts of America’s insurance carrier, Health

      Special Risk, Inc., also paid medical bills on behalf of Morris.




      Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 5 of 14
[7]   On February 4, 2013, Morris filed his Application for Adjustment of Claim

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

      November 3, 2014. The Single Member denied Morris’ claim on January 26,

      2015, and Morris filed his Application for Review by the full Board shortly

      thereafter.


[8]   After a hearing before the full Board, the full Board adopted the findings of the

      Single Member, modified the findings by adding findings number six and seven,

      and affirmed the denial of Morris’ Application for Adjustment of Claim. The

      Board determined Morris did not meet his burden to show his injuries arose out

      of and occurred in the course of his employment:

              1. [Morris] was hurt while building a yard barn structure as part
                 of his son’s Eagle Scout project.


              2. [Morris’] business is as a building contractor but at the time of
                 his injury he was not being paid for the project.


              3. [Morris] introduced evidence that he worked on several Eagle
                 Scout projects with others seeking goodwill and this translated
                 into an increased clientele for the business.


              4. [Morris’] injury did not arise out of his employment with
                 Custom Kitchens.


              5. [Morris] should take nothing on his Application for
                 Adjustment of Claim filed February 4, 2013.


              6. [Morris] is and has been a committed parent, supporter and
                 leader in his sons’ Boy Scout troop.

      Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 6 of 14
              7. [Morris’] injury arose out of an activity that was motivated by
                 [Morris’] desire to further his son’s Eagle project in particular
                 and to further the goals [of] his son’s Boy Scout troop in
                 general and did not arise from the business of which [Morris]
                 is the sole proprietor.


      Appellant’s Appendix at 4-9. Morris now appeals; CKB cross-appeals, seeking

      reimbursement of monies paid to or on behalf of Morris.



                                 Discussion and Decision
                                     I. Standard of Review
[9]   The Indiana Worker’s Compensation Act is to be liberally construed to

      effectuate its humane purpose. Daugherty v. Indus. Contracting & Erecting, 802

      N.E.2d 912, 919 (Ind. 2004). In reviewing a challenge to a decision of the

      Board, this court is bound by the factual determinations of the Board and may

      not disturb them unless the evidence is undisputed and leads inescapably to a

      contrary conclusion. Kovatch v. A.M. Gen., 679 N.E.2d 940, 942 (Ind. Ct. App.

      1997), trans. denied. We neither reweigh the evidence, nor judge the credibility

      of the witnesses. Id. at 942-43. “We must disregard all evidence unfavorable to

      the decision and must consider only the evidence and reasonable inferences

      therefrom which support the Board’s findings.” Id. at 942. The burden rests

      with the claimant to prove a right to compensation under the Worker’s

      Compensation Act. Danielson v. Pratt Indus., Inc., 846 N.E.2d 244, 247 (Ind. Ct.

      App. 2006). “Although we are not bound by the Board’s interpretations of law,

      we will reverse the Board’s decision only if the Board incorrectly interpreted the

      Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 7 of 14
       [Worker’s Compensation] Act.” Krause v. Ind. Univ.-Purdue Univ. at Indianapolis,

       866 N.E.2d 846, 851 (Ind. Ct. App. 2007), trans. denied.


           II. Arising Out of and in the Course of Employment
[10]   Indiana Code section 22-3-2-2(a) mandates the payment of compensation to

       employees for “personal injury or death by accident arising out of and in the

       course of the employment . . . .” The dual requirements the accident be

       “arising out of” and “in the course of” employment must both be met, and

       neither alone is sufficient. Conway v. Sch. City of East Chicago, 734 N.E.2d 594,

       598 (Ind. Ct. App. 2000), trans. denied. 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). A causal connection exists when a reasonable person would

       consider the injury to be the result of a risk incidental to employment or when

       there is a connection between employment and the injury. Milledge, 784 N.E.2d

       at 929. 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.


[11]   In Knoy v. Cary, 813 N.E.2d 1170 (Ind. 2004), Gemtron Corporation, a glass

       shelving manufacturer, sponsored a cleanup project at a Vincennes city park.

       Employees were encouraged, but not required, to attend the cleanup. Notice of

       the project was posted on a company bulletin board inviting employees to


       Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 8 of 14
       attend. The company publicized the event with advertisements in the local

       newspaper and supplied participating employees with work gloves, food, and

       beverages. Donald Knoy, a Gemtron employee, supplied a tractor for

       removing debris from a riverbank. During the cleanup, Joseph Cary, another

       Gemtron employee, was injured by Knoy’s negligent operation of the tractor.

       Cary filed suit against Knoy in Knox Superior Court. While the case was

       appealed to the supreme court on a different issue—whether the trial court

       lacked subject matter jurisdiction because Cary’s exclusive remedy was under

       the Act—the principle question was whether Cary’s injury “ar[ose] out of and

       in the course of” employment. Knoy, 813 N.E.2d at 1171.


[12]   Ultimately, our supreme court concluded Cary’s injuries arose out of and in the

       course of his employment with Gemtron and were therefore covered by the Act.

       In reaching this decision, the supreme court relied on two cases: Noble v.

       Zimmerman, 237 Ind. 556, 146 N.E.2d 828 (1957) and Ski World, Inc. v. Fife, 489

       N.E.2d 72 (Ind. Ct. App. 1986). The supreme court summarized those cases,

       stating,


               [I]n Noble, this Court allowed recovery under the Worker’s
               Compensation Act for an employee’s death that occurred at an
               after-hours activity sponsored by his employer. The employer in
               Noble held a business meeting at his lakeside summer residence
               with the understanding that at the conclusion of the meeting,
               dinner would be provided and there would be an opportunity for
               the employees to enjoy swimming and boating. After the
               business meeting concluded, an employee was injured diving into
               the lake and subsequently died. In sustaining compensation for
               his death under the Worker’s Compensation Act, this Court

       Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 9 of 14
        explained that injuries suffered while participating in after-hours
        recreational activities are usually not compensable because the
        injuries typically occur when the employee is not performing any
        duty related to his employment. The Court reasoned, however,
        that “in recent years it has become increasingly evident that
        employers are more and more utilizing recreational programs for
        their employees . . . in aiding and promoting better business
        relations with persons in their employ.” The Court concluded
        that the employee’s injury arose out of and in the course of his
        employment.


        The Court of Appeals reached the same conclusion in [Ski
        World], involving an injury during an after-hours party for the
        employees sponsored by the employer. The court reasoned that
        this Court’s emphasis in Noble was not on whether attendance at
        the party was required, but on the nexus between the claimant’s
        employment and the party. The court pointed out that Ski World
        “encouraged and therefore presumably expected its employees to
        attend the party . . . provided the food, the refreshments, the
        entertainment and the recreational equipment . . . and believed
        that holding such an event would be in its best business
        interests.” This was sufficient connection between the
        employer’s business and the recreational activity to support
        coverage.


Knoy, 813 N.E.2d at 1171-72 (alteration in original) (internal citations omitted).

The Court further explained that “where the employer’s interests in sponsoring

an after-hours activity are not merely altruistic, but are also intended to improve

the business, the activity may be incidental to employment.” Id. at 1172. The

Court concluded that similar to generating goodwill among employees, an

employer’s public image and goodwill in the community is a significant

business consideration. Id. at 1173. Therefore, it was in Gemtron’s business

Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 10 of 14
       interest to involve itself in community projects and its “sponsorship of and

       participation in the project served its business interests by enhancing its image,

       fostering a good relationship with the local community, and team building

       among its employees.” Id. at 1172.


[13]   Morris contends his case is factually and legally analogous to Knoy, and that his

       practice of participating in community service projects “fostered the growth of

       goodwill, his business reputation, and additional business” for CKB. Brief of

       Appellant at 12. In response, CKB recognizes Indiana courts have held some

       after-hours activities leading to an employee’s injury are compensable;

       however, CKB argues the Olivet Project was not an “employer-sponsored

       activit[y],” as required by Knoy. Appellee’s Brief at 13. CKB points out the

       Olivet Project was primarily intended to benefit Brad Morris’ Boy Scout

       ambitions, and that Brad actually planned the project and approached the

       congregation of the Church about the Olivet Project. Further, CKB states,


               Sponsorship by the employer encompasses more than a decision
               by Morris to help his son with an Eagle Scout Project. It
               encompasses more than Morris’ [sic] using some of his tools and
               his building knowledge to assist in the construction of the shed,
               or having his pickup truck parked at the site or, even donating
               some of the materials for the Project.


       Id. at 14.


[14]   We do not think “sponsorship” was intended to be a term of art or to connote a

       certain level of community awareness to be achieved by a business; rather, the

       focus is on the “connection between the employer’s interests in improving the
       Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 11 of 14
       business by holding the after-hours work-related activity and the employee’s

       employment.” Curry v. D.A.L.L. Anointed, Inc., 966 N.E.2d 91, 95-96 (Ind. Ct.

       App. 2012) (citing Knoy, 813 N.E.2d at 1172), trans. denied. In this case, Morris

       demonstrated a sufficient connection between his interests in improving his

       business by conducting community service projects and his sole proprietorship.

       At the Single Member Hearing, Morris introduced evidence showing he

       contributed to and participated in thirteen Boy Scout projects over a period of

       ten years. For the Olivet Project, Morris donated the materials his son needed

       to complete the project which were deducted as a business expense, used CKB’s

       tools and equipment, and participated in and directed its construction. Morris

       also parked his truck, which was clearly marked with the name of his business,

       telephone number, and contractor’s license number near the construction site.

       Moreover, the Vanderburgh County Building Commissioner’s testimony

       indicates the Olivet Project could not have been built without a contractor’s

       license, and without Morris’ license, Brad would either have had to create a

       different project or not build one.


[15]   CKB stresses the fact Morris primarily intended the Olivet Project to benefit his

       son’s Boy Scout endeavors. For example, Brad planned a significant amount of

       the project, and sought approval from and submitted documents to the Boy

       Scouts to be eligible to achieve an Eagle Scout ranking based on the project.

       Although we acknowledge the Olivet Project was primarily intended for this

       purpose, it does not alter the final resolution of the issue. In Knoy, Gemtron

       sponsored and engaged its employees to participate in a community cleanup


       Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 12 of 14
       project of a local park. Knoy does not indicate what level of involvement, if any

       at all, Gemtron contributed to planning the actual cleanup. Likewise, Morris

       contributed to and participated in the Olivet Project. Regardless of whether

       Brad planned a significant amount of the Olivet Project, the facts demonstrate

       Morris played a significant role in the project, and it could not have been

       completed without his contributions.


[16]   Further, Morris’ business received a direct benefit from his participation in

       community service projects, such as this one. Cf. Knoy, 813 N.E.2d at 1172

       (noting Gemtron did not receive or expect a direct business benefit). Morris

       testified that while improving his business and community relations were not

       his “primary concern for doing the [community service] projects,” his

       businesses did garner a substantial amount of business and goodwill as a result.

       Tr. at 45. Morris described his participation in the projects as opportunities for

       “networking” and engaging with the community, and at the Single Member

       Hearing Morris produced three witnesses who testified they hired Morris after

       observing his prior work on community service projects. Id. All of Morris’

       witnesses testified they knew of Morris and CKB through Morris’ participation

       in Boy Scouts, observed the quality of his work on Boy Scout community

       service projects, and subsequently hired him to complete remodeling or kitchen

       design in their homes.


[17]   As noted above, the Worker’s Compensation Act is to be liberally construed in

       order to effectuate its humane purpose, and we conclude these facts inescapably

       lead to a decision opposite of the Board’s decision—that Morris’ injury arose

       Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 13 of 14
       out of and in the course of his employment. See Daugherty, 802 N.E.2d at 919.

       Because we hold Morris’ injury is covered by the Worker’s Compensation Act,

       we do not address CKB’s cross-appeal.



                                               Conclusion
[18]   We conclude the facts presented inescapably lead to a decision opposite of the

       Board’s decision, and that Morris’ injury arose out of and in the course of his

       employment. Therefore, Morris’ injury is covered by the Indiana’s Worker’s

       Compensation Act. Accordingly, we reverse and remand for determination of

       the benefits he should receive.


[19]   Reversed and remanded.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 93A02-1601-EX-179 | December 7, 2016   Page 14 of 14
