Attorney for Appellant Attorney for Appellee
Gary P. Goodin John C. Grimm
Indianapolis, Indiana Auburn, Indiana
Indiana Supreme Court
Global Construction, Inc.,
Appellant (Defendant below),
Daniel T. March,
Appellees (Plaintiff below).
Appeal from the Indiana Workers Compensation Board, No. C-153805
The Honorable G. Terrence Coriden, Chairman
On Petition To Transfer from the Indiana Court of Appeals, No. 93A02-0211-EX-903
August 25, 2004
While leaving the foundry where he was assigned by his employer Daniel March
was injured by strikers. We hold that the Workers Compensation Act covers
Factual and Procedural Background
Global Construction employed Daniel March to service machinery at various facilities of Globals
customers. In September, 1999, March was performing maintenance at the Auburn Foundry,
in Auburn where employees of the Foundry were on strike.
March completed his shift at the Foundry at approximately 10:30 p.m. on the
night he was injured. Because a large number of picketing strikers had
congregated in a parking lot across from the employee exit, March waited approximately
fifteen minutes before attempting to leave the Foundry in his truck via the
employee exit. Strikers had positioned cars to shine their headlights at the
gate, which impaired Marchs vision as he made a right turn to exit
the Foundry onto the public street bordering the Foundry. Shortly after March
left the Foundry and turned onto the street, his truck was struck by
an object. When a second object cracked his windshield March stopped the
truck. March then backed his truck up or stopped and either got
out of his truck on his own, or was pulled out. A
verbal confrontation ensued and March was attacked, apparently by more than one person.
He was repeatedly struck in the head with a 2 x 4
board, and suffered significant injuries.
The Workers Compensation Act covers injuries that arise out of and in the
course of a persons employment. Ind. Code § 22-3-2-2 (1998). 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. The Oaks, 784 N.E.2d 926, 929 (Ind. 2003).
occurs in the course of employment when it takes place at the time
and place of a persons employment while an employee is fulfilling his duties.
Id. March filed a claim for workers compensation and a Single
Hearing Member of the Indiana Workers Compensation Board entered judgment for March,
finding that his injuries arose out of and the course of his employment
with Global. Global appealed and the Board upheld the Single Hearing Members
determination, but the Court of Appeals reversed, finding the injury neither arose out
of nor occurred in the course of Marchs employment. Global Constr. Inc.
v. March, 791 N.E.2d 769, 771 (Ind. Ct. App. 2003). This Court
granted transfer. Global Constr. Inc. v. March, 812 N.E.2d 791 (Ind. 2004).
Standard of Review and Adequacy of Findings
On appeal, we review the decision of the Board, not to reweigh
the evidence or judge the credibility of witnesses, but only to determine whether
substantial evidence, together with any reasonable inferences that flow from such evidence, support
the Boards findings and conclusions. Walker v. State, 694 N.E.2d 258, 266
The Board found that when Marchs windshield cracked, he stopped his truck, but
the Board could not conclude whether he backed his truck up or whether
he exited the truck on his own. The Board found that March
did not initiate a physical confrontation, but was attacked by one or more
picketers and struck with a 2 x 4 after he exited the truck.
Global argues that the Board erred in its finding that The evidence
conflicts, as to whether Plaintiff backed his truck up and whether he exited
the truck on his own, or was pulled out. Global asserts that
the Board is required to provide more specific findings of fact and that
the evidence shows that March backed his truck up and got out on
his own. We agree that the Boards findings must be sufficient to
allow review. Although the Board was unable to determine the specific facts
of the encounter, it found that March stopped his truck in response to
a cracked window and did not initiate a fight. Its ultimate conclusion
was that Marchs injury arose out of and in the course of his
employment. For the reasons given below, these findings are adequate to establish
I. Injuries in the Course of Employment
Global argues that Marchs injuries did not meet the statutory requirement that they
be incurred in the course of his employment. Global points out that
March was not on the employers premises, had already completed his work, and
was not performing any employment duties. In general, to arise in
the course of employment, an injury must occur during work and on the
employers premises. Therefore, most injuries sustained on route to or from the
workplace are not covered. Arthur Larson & Lex K. Larson, Larsons Workers
Compensation Law, § 13.01, at 13-3 (2004). For example, in Donahue v.
Youngstown Sheet & Tube Co., 474 N.E.2d 1013, 1014 (Ind. 1985), this Court
affirmed the denial by the Workers Compensation Board of benefits for an injury
an employee sustained on the way home from work. We reasoned that
the claimant had completed her duties and clocked out and was crossing a
public street when she was injured. Her employer did not expect or
compel her to cross that street. Id. We explained that because
the claimant was on a public street open to and used by members
of the general public, she was exposed to the same dangers as any
member of the public and her injury therefore fell outside of the employment
relationship. Id. at 1015.
Despite this general doctrine, courts have in some circumstances allowed compensation for injuries
that occur close to, but not on, the employers premises when an employee
was going to or coming from work. As the Indiana Court of
Appeals early explained, employment is not limited to the exact moment when the
workman reaches the place where he is to begin his work, or to
the moment when he ceases that work. It necessarily includes a reasonable
amount of time and space before and after ceasing actual employment, having in
mind all the circumstances connected with the accident. Reed v. Brown, 129
Ind. App. 75, 82, 152 N.E.2d 257, 259 (1958) (citation omitted).
employer-controlled parking lots and private drives used by employees have been held to
be extensions of the employers operating premises for purposes of coverage under the
Act. Id. Injuries sustained in public thoroughfares may also be covered
under some circumstances. For example, an employee was allowed to recover for
injuries sustained when she crossed a public street separating her place of employment
from the parking lot her employer provided. Clemans v. Wishard Meml Hosp.,
727 N.E.2d 1084, 1087 (Ind. Ct. App. 2000), trans. denied. The court
recognized that ordinarily an injury on a public street is not compensable, but
reasoned that the injury was incidental to her employment because she was required
to cross the public street to access the employee parking lot. The
street would be used as the most convenient and reasonable means of ingress
to and egress from its operating premises. Id. at 1088. The
same reasoning applies here. March was injured while leaving work using the
only available means of egress from the employers parking lot. That egress
exposed him to a danger specifically related to Marchs employmentpassing through a group
of agitated striking workers. Global argues that the strikers posed a threat
to all who used the street, and therefore were not peculiar to Marchs
employment. We think it obvious that a worker exiting a plant under
picketing is at greater risk than a passing motorist. Under these circumstances,
the area where the protesting strikers gathered is for all practical purposes an
extension of the workplace and March was not on his own time until
freed of the stress of exiting.
The Court of Appeals based its holding that Marchs injury was not in
the course of his employment on its conclusion that March was not injured
during his egress from the parking lot. Rather, the Court of Appeals
accepted Globals contention that March completed making his exit from his employers premises,
passed the strikers and only then backed up to confront them. Global
Constr., Inc. v. March, 791 N.E.2d 769, 773 (Ind. Ct. App. 2003).
This conclusion conflicts with the findings of the Workers Compensation Board, which could
not determine whether March backed up his truck or got out of his
truck on his own to confront the strikers, but did conclude that March
did not instigate a physical confrontation with anyone. The Boards findings of
fact are sustained if supported by substantial evidence. There is conflicting evidence
as to whether March backed up and if so why and how much.
More importantly, if, at the time of the injury, the employee was
doing what a reasonable person might expect him to do under the circumstances,
the employee has not abandoned his employment.
Natl Biscuit Co. v. Roth,
83 Ind. App. 21, 26-27, 146 N.E. 410, 412 (1925). We cannot
say as a matter of law Marchs response to this stressful situation was
unreasonable. At any rate, whether March acted personally or as an employee,
his injury resulted from a danger specific to his employment. March was
required by his employer to cross the picket line at the Foundry. See
Baggett Transp. Co. v. Holderfield, 68 So. 2d 21, 25 (Ala. 1953) (if
there ever was a time when an employee deserved compensation for his injuries,
it is when the employee, at considerable personal risk, remains on the job
to minimize the deterioration of plant and other loss being suffered by the
employer); Cf. Bedwell v. Dixie Bee Coal Corp., 99 Ind. App. 336, 339,
192 N.E. 723, 724 (1934). Stopping his truck when the windshield was
cracked is within the range of reasonable responses. Even if March disembarked
contrary to orders, that is a predictable response to a plainly stressful situation
created by the circumstances of his employment. We agree that March may
have failed to follow the instructions to ignore the strikers, but no personal
motive is apparent in Marchs conduct. Employees cannot be expected to conform
strictly to formal instructions when faced with sudden and intentional wrongful conduct from
others. Although arising from and in the course of are usually discussed
as independent factors, in practice the two are not, and should not be,
applied entirely independently. Larson, supra § 29.01, at 29-1. The stronger
the causal link to employment, the weaker the showing required to find an
injury to be incurred in the course of employment. Here, there is
no doubt that Marchs injuries were suffered specifically because of his employment at
the plant under strike as he left the plant gates. The injury
was incurred in a chain of events originating in the course of employment.
This is sufficient to support coverage under the workers compensation statute.
Even if passage through the employee exit and the gauntlet of picketers
was in the course of Marchs employment, the Court of Appeals found that
when March made the personal decision to reverse his truck and challenge the
strikers he became clearly and irrevocably on a course of conduct inconsistent with
his work and indicating personal business. Global Constr., 791 N.E.2d at 773.
In part, this conclusion turns on facts not found by the Board.
It is undisputed that March had been instructed to ignore the picketers
even when provoked. Global also argues that March should not receive compensation
because he was the aggressor in the situation. We agree with Global
that if an employee injured in an altercation is found to be the
aggressor in the confrontation, the employee may be denied compensation. Berryman v.
Fettig Canning Corp., 399 N.E.2d 840, 843 (Ind. Ct. App. 1980). However,
the Board found that March did not instigate a physical confrontation. Global
argues that the Boards finding on this point is contrary to the evidence
because March testified I got out and confronted him . . . This
testimony does not contradict the Boards conclusion. It is not clear that
March was referring to confronting the person who struck him. Moreover, the
Board specifically found that March did not initiate violence with anyone, and someone
in the crowd plainly was the initial aggressor by throwing objects at Marchs
truck and cracking his windshield. March acted in response to the actions
of the strikers, and the Boards conclusion that he was injured in the
course of employment is a reasonable inference from the evidence before it.
II. Injuries Arising Out of Employment
To arise out of employment and therefore be compensable, there must be
a causal connection between the injury and the workers employment. Milledge v.
The Oaks, 784 N.E.2d 926, 929 (Ind. 2003). This is not a
case where the injury is claimed to originate with the workers preexisting physical
condition as in Kovatch v. A.M. Gen., 679 N.E.2d 940, 944 (Ind. Ct.
App. 1997). Nor is it an injury from an unexplained source as
in Milledge, 784 N.E.2d at 930. Rather, Global contends that Marchs injuries
arose from his individual decision to exit the truck and confront the strikers.
One basis to establish a causal connection is to show the injury resulted
from a risk specific to the employment. We recently held that injury
from a risk incidental to employment is sufficient to bring a claim within
workers compensation as arising out of the employment. Wine-Settergren v. Lamey, 716
N.E.2d 381, 389 (Ind. 1999) (the nexus is established when a reasonably prudent
person considers 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). When determining whether a risk
or injury is incidental to employment, a court will consider the type of
activity in which the employee was engaged when injured and their relationship to:
his duties; the reasonableness of employees acts in relation to the sum
total of conditions and circumstances constituting the work setting at the time of
the injury; and finally, the knowledge and acquiescence of the employer in situations
where acts incidental to employment are being done in violation of company rules.
Segally v. Ancerys, 486 N.E.2d 578, 581 (Ind. Ct. App. 1985).
The pivotal question is whether the persons employment increased the hazard that led
to the injury. Id.
Global argues that Marchs exchange with the strikers is not compensable under the
Act because March confronted the strikers in a personal capacity, had been expressly
warned to avoid the picketers, and went past the strikers, out of harms
way, and then, on his own initiative, in order to confront the strikers,
backed his vehicle up into the proximity of the strikers, and voluntarily got
out of his vehicle to confront the strikers. This is presented in
support of the contention that the injury did not arise out of employment.
We think it is a restatement of the arguments directed to in
the course of employment. There is no doubt that the blows March
suffered were the cause of his injuries. The issue is whether the
beating was received in the course of employment. For the reasons given
in Part I, we conclude that it was. Insofar as this argument
is a separate contention as to arising from, as long as a causal
connection exists between the injury and the persons employment, an employee may still
recover for an injury sustained while performing personal acts. Prater v. Ind.
Briquetting Corp., 253 Ind. 83, 88, 251 N.E.2d 810, 812 (1969). The
same chain of events that places his injuries in the course of his
employment also establishes that his injuries arose from his employment. Indeed, it
seems obvious that March was struck because of his employment, and if he
were a passing motorist rather than an employee exiting a plant under strike
his injuries would never have been sustained.
In sum, the Workers Compensation Board found that Marchs injury arose out of
and in the course of his employment. The evidence does not lead
clearly and inescapably to the opposite conclusion.
The decision of the Workers Compensation Board is affirmed.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.