Rogers v. Bethlehem Steel Corp.

• Decision Date: 28 August 1995
• Docket Number: No. 93A02-9410-EX-639,93A02-9410-EX-639
• Citation: 655 N.E.2d 73
• Parties: June ROGERS, Appellant-Plaintiff, v. BETHLEHEM STEEL CORPORATION, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 73

655 N.E.2d 73

June ROGERS, Appellant-Plaintiff, v. BETHLEHEM STEEL CORPORATION, Appellee-Defendant.

No. 93A02-9410-EX-639.

Court of Appeals of Indiana.

Aug. 28, 1995.

James J. Nagy, Munster, for appellant.

Larry G. Evans, Lauren K. Kroeger, Hoeppner, Wagner & Evans, Valparaiso, for appellee.

OPINION

HOFFMAN, Judge.

Appellant-plaintiff June Rogers, the surviving widow of Joseph P. Rogers, appeals from a decision of the Full Worker's Compensation Board ("Board") denying recovery of certain death and statutory burial benefits.

On September 24, 1992, Joseph was murdered at his place of employment, Bethlehem Steel Corporation ("Bethlehem Steel"), which is located in Porter County, Indiana. Joseph's death was caused by blunt force trauma to his head. A jury found Garry Moore, also an employee of Bethlehem Steel, guilty of robbing and murdering Joseph. Joseph was known to carry a large sum of money and had loaned money to various persons in the past, including Moore. Joseph's wallet was not found at the scene of the murder.

Subsequently, a dispute arose between Rogers, as the surviving widow of Joseph, and Bethlehem Steel regarding the benefits payable under the Indiana Worker's Compensation Act. On June 7, 1992, Rogers filed an application for adjustment of her claim with the Board. The case was submitted for hearing before an individual hearing member of the Board. Rogers and Bethlehem Steel stipulated to various facts which included:

"5. At the time of his death, Joseph P. Rogers was found in a place where he was expected to be when fulfilling the duties of his employment for the defendant Bethlehem Steel Corporation.

6. Joseph Rogers' death occurred while he was at work and therefore occurred in the course of his employment."

The hearing officer denied Rogers' claim. Rogers then filed an application for review by the Full Board on June 17, 1994. The case was submitted for hearing before the Board which in an order dated September 27, 1994, affirmed the decision of the single hearing member. Rogers now appeals.

The sole issue presented for review is whether the death of Joseph arose out of his employment with Bethlehem Steel, thus, bringing Rogers' claim within the purview of the Worker's Compensation Act (the "Act"), IND.CODE § 22-3-2 et seq.

In challenging the Board's decision, Rogers confronts a strong standard of review. 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. Four Star Fabricators, Inc. v. Barrett (1994), Ind.App., 638 N.E.2d 792, 794; Jablonski v. Inland Steel Co. (1991), Ind.App., 575 N.E.2d 1039, 1041, trans. denied; K-Mart Corp. v. Novak (1988), Ind.App., 521 N.E.2d 1346, 1348, trans. denied. We must disregard all unfavorable evidence and must examine only that evidence and the reasonable inferences therefrom which support the Board's findings. Four Star Fabricators, Inc., 638 N.E.2d at 794. Further, this Court neither reweighs the evidence nor judges the witness's credibility, as these are functions of the Board. Id.

Rogers argues that the Board erred by determining Joseph's death did not "arise out of" his employment with Bethlehem Steel. Rogers has the burden of proving the applicability of the Act. Jablonski, 575 N.E.2d at 1041; Lona v. Sosa (1981), Ind.App., 420 N.E.2d 890, 894, trans. denied. To recover under the Act, a claimant must establish that an injury or death occurred "by accident arising out of and in the course of employment." IND.CODE § 22-3-2-2; Evans v. Yankeetown Dock Corp. (1986), Ind., 491 N.E.2d 969, 973.

Rogers suggests that by stipulating to the fact that Joseph's death occurred in the course of employment, Bethlehem Steel must also have conceded that his death arose out his employment. Rogers fails to recognize that "in the course of" and "arising out of" are two separate elements. See K-Mart, 521 N.E.2d at 1348. Under the Act, an injury or death to be compensable must both arise out of and be in the course of employment, and neither alone is sufficient. Olinger Const. Co. v. Mosbey (1981), Ind.App., 427 N.E.2d 910, 912, trans. denied; Tom Joyce 7 Up Co. v. Layman (1942), 112 Ind.App. 369, 373, 44 N.E.2d 998, 999. The words "in the course of" refer to the time, place and circumstances under which the injury occurred. Bethlehem Steel does not dispute the fact Joseph was in the course of his employment at the time of his death. Bethlehem Steel also does not dispute the fact Joseph's death, although caused by the intentional acts of a co-employee, was an "accident" within the meaning of the Act. See Evans, 491 N.E.2d at 975 ("injury or death by accident," as used in the Act means unexpected injury or death). These stipulations, however, do not necessarily place Rogers' claim within the Act; Joseph's death must have also "arisen out of" his employment.

The words "arising out of" refer to the origin or cause and are descriptive of the accident's character. Olinger, 427 N.E.2d at 912. 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. Burke v. Wilfong (1994), Ind.App., 638 N.E.2d 865, 869. This 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. However, it is...