      MEMORANDUM DECISION
                                                                  Jul 28 2015, 9:17 am
      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 the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEY FOR APPELLEE
      Donald S. Smith                                           Neil E. Gath
      Laura S. Reed                                             Gath Law Office
      Phillip Olsson                                            Indianapolis, Indiana
      Riley Bennett & Egloff, LLP
      Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Performance Contracting, Inc.,                           July 28, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               93A02-1502-EX-98
              v.                                               Appeal from the Indiana Workers’
                                                               Compensation Board
      Randy Lowe,                                              The Honorable Linda Hamilton,
      Appellee-Plaintiff                                       Chairperson

                                                               Cause No. C-222070




      Bailey, Judge.



                                            Case Summary
[1]   Performance Contracting, Inc. (“PCI”) appeals an order of the Full Worker’s

      Compensation Board of Indiana (“the Board”), affirming the Single Hearing

      Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015    Page 1 of 11
      Member’s (“the Single Member”) decision whereby Randy Lowe (“Lowe”) was

      awarded compensation upon his claims for temporary total disability and

      medical expenses. PCI presents a single, consolidated issue: whether the Board

      erred as a matter of law by concluding that Lowe’s injuries arose out of his

      employment, as opposed to arising from a personal risk incidental to his

      employment. We affirm.



                            Facts and Procedural History
[2]   Lowe was injured in a fall on August 22, 2013 but was denied worker’s

      compensation benefits. On September 16, 2013, Lowe filed his Application for

      Adjustment of Claim. A hearing was conducted before the Single Member on

      April 24, 2014. The parties stipulated that, on August 22, 2013, Lowe had been

      employed by PCI when he “fell through the floor of a capped off smokestack

      and landed about 30 feet below, injured multiple body parts.” (App. at. 4.)


[3]   The Single Member made the following relevant factual findings:

              1. Plaintiff worked for Defendant as a union laborer. Defendant was
                 contracted to provide services at American Energy Power
                 (“AEP”), a power plant, in Lawrenceburg, Indiana.
              2. On the date of Plaintiff’s accident he was assigned to clean Unit 1
                 at AEP. Plaintiff was cleaning several flights of stairs prior to the
                 incident.
              3. Plaintiff struck the stairs to knock the dirt and dust off of the
                 railings of the staircases with a hand broom as he proceeded up the
                 steps. When Plaintiff reached the top of the stairs he went out onto
                 the roof to wait for the dust to settle because it was thick and
                 difficult to breathe.


      Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 2 of 11
        4. Plaintiff was working with a co-worker on this date, Jason Cox.
           Both employees went out on to the roof. The employees did not
           want to be seen not working while they were waiting for the dust to
           settle so they proceeded to an abandoned smoke stack on the roof.
           Defendant had instructed its employees that they should not be
           seen by plant management if they were not actively engaging in
           work activities.
        5. The smoke stack that the employees entered had been abandoned
           and capped off so that debris did not get into the plant from the
           opening in the smoke stack.
        6. The area in the smoke stack had been used as a makeshift break
           area based on the evidence from the scene. The area had
           significant debris including pop cans, cigarette butts, food
           wrappers, and blankets. It is more likely than not that Defendant
           and/or the plant management knew that employees used the
           smoke stack in this manner and acquiesced. Going into the smoke
           stack to wait for the dust to settle was part of Plaintiff’s routine
           when cleaning this particular Unit. Plaintiff went into the area at
           least one time per week when cleaning Unit 1. Plaintiff had been
           in the smoke stack with at least four (4) other of Defendant’s
           employees.
        7. John Folke, who had done work at the AEP plant, credibly
           testified that it was general knowledge that people went into the
           smoke stack, yet neither Defendant nor AEP had made any effort
           to restrict the area. Cory Walston, Plaintiff’s foreman, testified that
           the roof was an accessible area and anyone could go up there.
        8. Plaintiff was never instructed not to go into the smoke stack and
           there were no signs stating that the area was restricted. The report
           from Rimkus Consulting Group noted that this area was restricted
           but this is not consistent with the testimony and evidence presented
           at the hearing.
        9. Jason Cox and Plaintiff were waiting in the smoke stack for the
           dust to settle in the plant when the floor collapsed and Plaintiff fell
           thirty (30) feet to the floor below.
        10. Plaintiff was severely injured in the fall, including a fractured hip,
            fractured pelvis, injuries to his head, ribs, hand, lower back, and
            right shoulder.


Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 3 of 11
      (App. at 5-6.) The Single Member concluded:

              Plaintiff was injured by accident in the course of and arising out of his
              employment with the Defendant. Plaintiff was avoiding the dust in
              the plant as part of his cleaning duties when he went into the smoke
              stack, which was not a restricted area. Plaintiff was acting consistent
              with the direction not to be seen by plant management while he was
              not actively engaging in his duties. Accordingly, Plaintiff’s accident
              occurred in the course of and arising out of his employment with
              Defendant.
      (App. at 7.) PCI sought review before the Board and, on February 20, 2015, the

      decision of the Single Member was adopted by the Board, with the addition of

      the following language:

              The Full Board further finds that Plaintiff had not been directed that he
              could not be on the roof or in the smoke stack. Plaintiff was in a place
              he could reasonably be expected to be based on the totality of the
              evidence, including Defendant’s inaction when the evidence presented
              indicated that employees had been in the area where Plaintiff’s injury
              occurred on a frequent basis.
      (App. at 11.) This appeal ensued.



                                 Discussion and Decision
                                          Standard of Review
[4]   An appellant faces a deferential standard of review when challenging the

      Board’s findings. Niegos v. ArcelorMittal Burns Harbor LLC, 940 N.E.2d 323, 325

      (Ind. Ct. App. 2010). This Court is bound by the Board’s findings of fact and

      may consider only errors in the Board’s conclusions of law. Id. However, we

      may disturb the Board’s factual determinations if we conclude that the evidence


      Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 4 of 11
      is undisputed and leads inescapably to a result contrary to that reached by the

      Board. Id.


[5]   We do not reweigh evidence or judge the credibility of witnesses, but determine

      whether substantial evidence, together with any reasonable inferences that flow

      from such evidence, support the Board’s findings and conclusions. Bertoch v.

      NBD Corp., 813 N.E.2d 1159, 1160 (Ind. 2004). In so doing, we employ a two-

      tiered standard of review: we review the record to determine if there is any

      competent evidence of probative value to support the Board’s findings, and we

      then examine the findings to see if they are sufficient to support the decision.

      Wholesalers, Inc. v. Hobson, 874 N.E.2d 622, 627 (Ind. Ct. App. 2007). To

      prevail, the appellant must demonstrate that there was no probative evidence

      from which the Board might reasonably conclude as it did. Niegos, 940 N.E.2d

      at 325-26. To the extent that an issue involves a conclusion of law based on

      undisputed facts, it is reviewed de novo. DePuy, Inc. v. Farmer, 847 N.E.2d 160,

      164 (Ind. 2006).


                              Injury Arising out of Employment
[6]   The Indiana Worker’s Compensation Act (“the Act”) provides compensation

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

      employment. Ind. Code § 22-3-2-2. The claimant bears the burden of proving

      his right to compensation and, as a general rule, “the issue of whether an

      employee’s injury or death arose out of and in the course of his or her




      Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 5 of 11
      employment is a question of fact to be determined by the Board.” Wright Tree

      Service v. Hernandez, 907 N.E.2d 183, 186-87 (Ind. Ct. App. 2009), trans. denied.


[7]   For an injury to arise out of employment and thus be compensable, there must

      be a causal connection between the injury and employment. Burdette v. Perlman-

      Rocque Co., 954 N.E.2d 925, 930 (Ind. Ct. App. 2011). A sufficient nexus is

      established when a reasonably prudent person would consider 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

      employment occurs. Wine-Settergren v. Lamey, 716 N.E.2d 381, 389 (Ind. 1999).

      Personal acts of employees which are reasonably necessary to their life,

      comfort, or convenience, even though such acts are not technically acts of

      service, have been deemed to be arising out of employment. Prater v. Indiana

      Briquetting Corp., 253 Ind. 83, 90, 251 N.E.2d 810, 813 (1969) (employee being

      killed while traveling to a nearby business to purchase soft drinks arose out of

      employment). Examples have included washing up after work, satisfying thirst,

      seeking fresh air, answering telephone calls, eating lunch, or going to the

      restroom. Indiana & Michigan Elec. Co. v. Morgan, 494 N.E.2d 991, 993 (Ind. Ct.

      App. 1986).


[8]   The risks incidental to employment fall into three categories: (1) risks distinctly

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

      that are neutral in that they are neither distinctly associated with employment

      nor distinctly personal in character. A Plus Home Health Care Inc. v.

      Miecznikowski, 983 N.E.2d 140, 142 (Ind. Ct. App. 2012). Such risks are

      Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 6 of 11
       covered under the Act, with the exception of the second category. Id. at 142-43.

       Risks personal to a claimant, caused by a pre-existing illness or a condition

       unrelated to employment, are not compensable. Id. at 143.


[9]    PCI does not dispute that Lowe’s injury arose in the course of his employment.

       However, PCI challenges the Board’s determination that Lowe’s injury arose

       out of his employment. According to PCI, when Lowe stepped into the smoke

       stack, he assumed a personal risk – one not inherent in his work environment.


[10]   As an initial matter, PCI challenges one finding of fact – that of acquiescence.

       PCI argues that the record lacks evidentiary support for the finding:

               It is more likely than not that Defendant and/or the plant management
               knew that employees used the smoke stack in this manner [as a
               makeshift break area] and acquiesced.
       (App. at 6.) There was no testimony before the Single Member that PCI or

       plant management specifically knew that the smoke stack was being used as a

       break area. However, there was evidence that the smoke stack had been used

       by multiple individuals over a long period of time, that its use was “general

       knowledge,” and that it was cluttered with smoking and snack materials. (Tr.

       at 30.) From this evidence, the Single Member drew an inference, finding it

       “more likely than not” that there was acquiescence by management. (App. at

       6.) This inference is a reasonable one.


[11]   Moreover, the challenged finding is not the only finding relative to employee

       access to the smoke stack. In addition to adopting the Single Member’s

       findings of fact, the Board also found that Lowe had not been explicitly

       Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 7 of 11
       restricted from the roof or smoke stack. Whether or not PCI specifically knew

       of the common usage of the smoke stack, it was an area not marked by

       prohibitive signs and was accessible to Lowe. In other words, Lowe was in an

       area where he was at least tacitly permitted to be during the work day.


[12]   PCI next argues that Lowe simply incurred a personal risk, for which worker’s

       compensation benefits are not available.


[13]   PCI directs our attention to a trilogy of worker’s compensation cases wherein

       the claimant established the existence of only a risk personal to the employee:

       Indiana Michigan Power Co. v. Roush, 706 N.E.2d 1110 (Ind. Ct. App. 1999);

       Rogers v. Bethlehem Steel Corp., 655 N.E.2d 73 (Ind. Ct. App. 1995); and Pavese v.

       Cleaning Solutions, 894 N.E.2d 570 (Ind. Ct. App. 2008).


[14]   In Indiana Michigan Power Co., telephone operator Roush had died after

       swallowing approximately one-half of a sandwich as he walked toward the

       switchboard where he worked. 706 N.E.2d at 1112. His widow had been

       awarded worker’s compensation benefits, but a panel of this Court reversed that

       award, concluding that the Board erred in finding that Roush’s choking arose

       out of and in the course of his employment. Id. at 1114. In particular, the

       Court observed:

               Roush’s habit of putting a large amount of food in his mouth at one
               time and attempting to swallow it whole was a personal risk to which
               he would have been exposed each time he ate, whether that act
               occurred at work, at home, or at a restaurant. Nothing about Roush’s
               employment increased his risk of choking or was causally connected to
               it.

       Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 8 of 11
       Id. at 1115.


[15]   In Rogers, an employee had been murdered by a co-worker at their place of

       employment. 655 N.E.2d at 74. His widow was denied certain death and

       statutory burial benefits and appealed that decision; a panel of this Court

       affirmed the denial:

               Joseph was known to carry large sums of money and had in the past
               loaned money to various persons, including Garry Moore. Joseph was
               not required to carry or loan money to any of his coworkers as a
               condition of his employment at Bethlehem Steel. Further, co-
               employee Jean Collins observed Moore and Joseph arguing over
               something, which was unrelated to the job and appeared to be a
               personal matter, ten days prior to Joseph’s death. The transcript from
               Moore’s criminal trial, which was admitted into evidence before the
               Board, also revealed that prior to the murder, Moore told Willie
               Martin that he was going to harm Joseph by using a bar to “bust him
               in his head.” The evidence is sufficient to support the Board’s
               conclusion that Joseph’s death resulted from a risk personal to himself,
               i.e., the carrying and loaning of large sums of money, and it did not
               arise out of his employment with Bethlehem Steel.
       Id. at 76.


[16]   In Pavese, an employee of a cleaning company had been found unconscious on

       the floor of a gas company 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, a

       panel of 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

       Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 9 of 11
       her injury arose out of her employment. Id. at 578. The Court observed that

       the single hearing member had found Pavese experienced an unexplained

       syncopal episode, such was “a personal event,” and Pavese had not proved the

       alternate grounds, slipping. Id.


[17]   The foregoing cases involve events that would have taken place regardless of

       the environment provided by the employer. According to PCI, Lowe’s decision

       to enter the smoke stack constitutes conduct giving rise to such a personal risk.

       PCI does not dispute that Lowe would be obliged to seek escape from dust, nor

       does PCI dispute the contention that Lowe was told to stay out of sight when

       not actively working.1 Rather, PCI observes that the open roof was available

       and faults Lowe on his decision to enter the smoke stack. According to PCI,

       Lowe did not select the “best place” to seek fresh air. (Appellant’s Br. at 16.)


[18]   In hindsight, Lowe may not have made an optimal selection between available

       areas to escape the dust when he chose to enter what the Single Member had

       found to be a “makeshift break area.” (App. at 7.) However, Lowe points out

       that the Act embodies a no-fault scheme, as opposed to one in which

       contributory negligence by the employee bars worker’s compensation. We

       agree. See Spangler, Jennings & Dougherty P.c. v. Indiana Ins. Co., 729 N.E.2d

       117, 120 (Ind. 2000) (acknowledging that employers provide limited

       compensation to workers whose injuries arise out of and in the course of their



       1
         Apparently, there had been discussion that, if contractors appeared idle, the premises owner could “lay
       them off.” (Tr. at 13.)

       Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015              Page 10 of 11
       employment, regardless of fault). Whether or not Lowe made the most prudent

       choice for his retreat from dust is not probative of whether he had a personal

       risk, i.e., that which is “caused by a pre-existing condition or unrelated to

       employment.” A Plus Home Health, 983 N.E.2d at 143.


[19]   Lowe’s entry into the smoke stack was not unique conduct. Nor was it a type

       of conduct exposing him to risk regardless of whether he was at his workplace.

       The evidence before the Board does not lead unerringly to the conclusion that

       Lowe experienced a personal event when he fell.



                                                  Conclusion
[20]   We affirm the Board’s determination that Lowe’s injuries arose out of his

       employment. The Board properly determined that Lowe is entitled to benefits

       under the Act.


[21]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 93A02-1502-EX-98 | July 28, 2015   Page 11 of 11
