MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                            FILED
the defense of res judicata, collateral                             Dec 26 2019, 6:50 am
estoppel, or the law of the case.
                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEYS FOR APPELLANT                                 ATTORNEY FOR APPELLEE
Nathan B. Maudlin                                       Martin T. Spiegel
Randal M. Klezmer                                       Spiegel & Cahill, P.C.
Klezmer Maudlin, P.C.                                   Hinsdale, Illinois
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew Hall,                                            December 26, 2019
Appellant,                                              Court of Appeals Case No.
                                                        19A-EX-1443
        v.                                              Appeal from the Indiana Worker’s
                                                        Compensation Board
Habitat for Humanity of Grant                           The Honorable Linda Peterson
County, Inc.,                                           Hamilton, Chairperson
Appellee.                                               Application Number: C-239351




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-EX-1443| December 26, 2019            Page 1 of 6
                                            Case Summary
[1]   Andrew Hall appeals the decision of the Indiana Worker’s Compensation

      Board (“the Board”) denying his claim for worker’s compensation, after he

      sustained injuries from a firework explosion while working for Habitat for

      Humanity of Grant County, Inc. (“Habitat”). Hall contends that the Board

      erred by concluding that his injuries did not arise out of and in the course of his

      employment. We affirm.1



                               Facts and Procedural History
[2]   On August 7, 2015, Hall and Alonzo Hill were employees of Habitat, which

      operated a resale shop. Hall and Hill were instructed to retrieve items donated

      by Ron Vielee. Vielee previously operated a fireworks and Halloween store out

      of a warehouse and decided to donate a sign and desk to Habitat after selling

      the warehouse to CVS Systems. Hall and Hill loaded the sign and desk into

      Hall’s truck, and, at some point, Hall came into possession of an ammunition

      box containing fireworks called Talons. Hall testified that the Talons were given

      to him by Vielee; however, Vielee denied giving the Talons to Hall. Hall

      removed the Talons from the ammunition box and placed them in his lunch

      pail, which sat atop the center console of his vehicle. As Hall drove the

      donations back to Habitat, he removed one of the Talons from his lunch pail.




      1
          On November 11, 2019, Appellee moved to amend its brief, a motion which we now grant.

      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1443| December 26, 2019            Page 2 of 6
      As Hall held the Talon in his left hand, Hill was smoking a cigarette, and Hall

      was either holding or smoking a cigarette. Hill reminded Hall to be careful not

      to light the Talon because they knew someone who had recently died due to an

      incident involving fireworks. Following Hill’s warning, Hall heard the

      passenger-side window being rolled down and the firework exploded. Hill

      heard the sudden explosion and Hall screaming. Hill managed to steer the

      vehicle into a Dollar General parking lot and emergency personnel arrived to

      transport Hall to the hospital, who had suffered severe injuries to his left hand.


[3]   On August 7, 2017, Hall filed an application for adjustment of claim for

      worker’s compensation. Following a hearing, on February 1, 2019, a single

      hearing member concluded that Hall’s injuries did not arise out of and in the

      course of his employment for purposes of the Indiana Worker’s Compensation

      Act (“WCA”). Hall sought review of his application by the Board, which upon

      review affirmed the single hearing member’s conclusion on June 12, 2019. In

      doing so, the Board concluded that


              16. The weight of the evidence is that the accidental injuries
              sustained on August 7, 2015 did not arise out of [Hall’s]
              employment. In reaching this conclusion, the Board notes
              discrepancies in the factual evidence. For example, there is a
              dispute as to whether the Talons were collected with Mr. Vielee’s
              approval or whether [Hall] “improperly removed” them. [Hall’s]
              description of the details leading up to the explosion, including
              his assertion as to how the Talon’s fuse was lit while he was
              holding it in his left hand, does not seem credible. In addition,
              given that one of [Hall’s] acquaintances was fatally injured by a
              Talon just weeks prior to the incident in this case, [Hall’s] version
              of events relies on a series of coincidences, none of which have

      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1443| December 26, 2019   Page 3 of 6
              any probable tie to [Habitat’s] business operations or to [Hall’s]
              work duties. Finally, while [Habitat] did not have an affirmative
              rule against collecting or accepting fireworks for personal use, or
              a rule against smoking while transporting them, it did not direct
              or expect [Hall] to do so as part of his normal work duties of
              collecting donated items for resale.


              17. The weight of the evidence is that the activity leading to the
              August 7, 2015 explosion was related to a personal issue or
              errand, and that the risk of injury in this case was personal and
              not employment-related.


              18. Furthermore, while it appears [Hall] was “on the clock” at
              the time of the explosion, the Board struggles to find evidence
              that collecting and handling dismantled explosives while driving
              somehow furthered [Habitat’s] business interest. The Act of
              holding an explosive device while driving a vehicle in which one
              or both of the occupants is smoking might be considered
              horseplay sufficient to remove the activity from the course of
              employment. The Board therefore concludes that [Hall’s]
              accidental injuries did not occur in the course of his employment
              with [Habitat].


      Appellant’s App. Vol. II pp. 11–12.



                                Discussion and Decision
[4]   Hall contends that the Board erred by concluding that his injuries did not arise

      out of and in the course of his employment.


              It is the duty of the Board, as the trier of fact, to make findings
              that reveal its analysis of the evidence and are specific enough to
              permit intelligent review of the Board’s decision. We will not
              reweigh the evidence or assess the credibility of witnesses. We
      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1443| December 26, 2019   Page 4 of 6
              employ a two-tiered standard of review. We will review the
              evidence in the record to see if there is any competent evidence of
              probative value to support the Board’s findings and then examine
              the findings to see if they are sufficient to support the decision.
              We will consider only the evidence most favorable to the award,
              including any and all reasonable inferences deductible from the
              proven facts.


      Neidige v. Cracker Barrel, 719 N.E.2d 441, 443 (Ind. Ct. App. 1999) (internal

      citations omitted).


[5]   The WCA covers accidents that arise out of and in the course of employment.

      Id. An injury arises out of employment when a causal nexus exists between the

      injury or death and the duties or services performed by the injured employee.

      DePuy, Inc. v. Farmer, 847 N.E.2d 160, 164 (Ind. 2006). “The causal relationship

      is established when a reasonably prudent person considers a risk to be

      incidental to the employment at the time of entering into it.” Id. (quotations and

      citations omitted). A worker who is engaged in horseplay, however, is not

      entitled to worker’s compensation, because horseplay is not for the benefit of

      the employer and therefore does not arise out of the employment. Id.


[6]   Here, to the extent that the Board might not have been unequivocal in

      concluding that Hall’s actions amounted to horseplay, such a conclusion is

      amply supported by evidence in the record, and we may affirm on any basis

      supported by the record. See City. of South Bend v. Century Indem. Co. 821 N.E.2d

      5, 9 (Ind. Ct. App. 2005) (“We may sustain the trial court’s ruling if we can

      affirm on any basis found in the record.”). While confined inside a moving


      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1443| December 26, 2019   Page 5 of 6
      vehicle, Hall removed the firework from inside his lunch pail and held it in his

      left hand. Hall acknowledged that this firework was no longer properly

      assembled, because it was missing the stick it would normally be attached to.

      Both Hall and Hill also knew this firework was dangerous because someone

      they knew had recently died as a result of an injury sustained from a firework,

      and Hill cautioned Hall to be careful not to light it. Nonetheless, they chose to

      smoke cigarettes near the short-fused, softball-sized firework. Moreover, Hall

      claimed that the explosion must have occurred after a cigarette spark was swept

      up into the crosswind from the open window and then ignited the fuse of the

      firework. The Board, however, found Hall to be uncredible, noting that his

      “version of events relies on a series of coincidences[,]” Appellant’s App. Vol. II

      p. 12, leading to the reasonable conclusion that the explosion resulted from

      Hall’s horseplay.


[7]   The decision of the Board is affirmed.


      Robb, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-EX-1443| December 26, 2019   Page 6 of 6
