Attorney for Appellant Attorney for Appellees
Allan J. Mindel Bruce J. Alvarado
Merrillville, Indiana Indianapolis, Indiana
Indiana Supreme Court
Larry J. Bertoch,
Appellant (Plaintiff below),
NBD Corporation AND U.S.
Appellees (Defendants below).
Appeal from the Full Workers Compensation Board, No. C-128281
The Honorable G. Terrence Coriden, Chairman
On Petition To Transfer from the Indiana Court of Appeals, No. 93A02-0212-EX-1016
August 25, 2004
Larry Bertoch suffered a fatal heart attack while working as a security guard
in a building where a fire had occurred. We hold that his
death is compensable under the Indiana Workers Compensation Act.
Factual and Procedural Background
On February 1, 1994, while responding to a fire alarm at the NBD
building, members of the Gary Fire Department found Larry Bertochs body on the
landing between the tenth and eleventh floors. According to the Fire Department
report the fire department found evidence on the twelfth floor of a fire
in the elevator-switching panel that had self-extinguished. The fire pull station was
engaged and a fire extinguisher was displaced, but had not been used.
Asserting that Bertochs death resulted from his response to the fire, Bertochs widow
filed an Application for Adjustment of Claim with the Workers Compensation Board.
A Single Member of the Workers Compensation Board heard the claim and awarded
Bertoch full death benefits, finding that the death occurred as a result of
Bertochs response to the alarm. This produced a psychological shock, which required
unusual physical exertion beyond his routine employment. NBD requested review by the
Full Board and the Board reversed the decision of the Single Hearing Member,
finding that the timing of Bertochs heart attack was coincidence.
See footnote Be
and the Court of Appeals remanded the case to the Full Board for
specific findings supporting its conclusion. The Full Board issued additional findings of
fact and again concluded that Bertochs death did not arise out of his
employment. Bertoch appealed and the Court of Appeals affirmed the Board in
an unpublished decision. We grant transfer and reverse the Board.
Bertochs Right to Compensation
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 (Ind.
1998). The Boards conclusions of law are reviewed de novo. Id.
The Indiana Workers Compensation Act provides for compensation of injury or death by
accident arising out of and in the course of employment. Ind. Code
§ 22-3-2-2 (1998). The claimant bears the burden of proving the right
to compensation. Glenn v. Bd. of Commrs, 552 N.E.2d 485, 487 (Ind.
Ct. App. 1990). There is no doubt that Bertochs death occurred in
the course of his employment. He died at his worksite during regular
work hours. There is no suggestion that he departed from his duties
in any respect for personal reasons. The Court of Appeals placed importance
on the fact that Bertochs work description required him to call 911 in
the event of fire. The court observed that because Bertochs body was
located on the landing in between the tenth and eleventh floor, an inference
can be drawn that Bertoch investigated the fire himself without waiting for the
fire department to arrive and concluded that Bertoch therefore went beyond his required
Even if Bertoch had no obligation to respond to the fire, his death
nevertheless occurred in the course of his employment. An action that directly
or indirectly advances an employers interest or is for the mutual benefit of
the employer and employee may be incidental to and arise in the course
of employment. Ind. & Mich. Elec. Co. v. Morgan, 494 N.E.2d 991,
994 (Ind. Ct. App. 1986). An employee remains within the scope of
his employment when he does something that a reasonable person would do or
would be expected to do under the circumstances. Prater v. Ind. Briquetting
Corp., 253 Ind. 83, 88-89, 251 N.E.2d 810, 813 (1969) (citing Natl Biscuit
Co. v. Roth, 83 Ind. App. 21, 26, 146 N.E. 410, 412 (1925)).
Here, it was more than reasonable that Bertoch would respond to a
fire alarm by attempting to find and extinguish the fire. By climbing
the stairs to investigate and possibly extinguish the fire, Bertoch was attempting to
prevent it from causing damage to the building and was therefore trying to
advance his employers interests.
See footnote Indeed, rescue or emergency responses are typically found
to be in the course of emplo
yment even if not within the specified
duties of the employee. See generally Arthur Larson & Lex Larson, Larsons
Workers Compensation Law § 28.01, at 28-2 (2004). Bertochs response to the
fire was therefore not outside the scope of his employment. NBD also
argues that there is no evidence that Bertoch responded to the fire alarm.
There is no direct evidence that Bertoch was responding to the fire
or the alarm, but the circumstances certainly suggest it and that is the
conclusion that the Board drew. We find no evidence leading clearly to
a different conclusion.
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.
Milledge v. The Oaks, 784 N.E.2d 926, 929 (Ind. 2003); Larson, supra,
§ 3.05, at 3-6. Essentially, the Board and the Court of Appeals
concluded that Bertoch died from a preexisting coronary condition that would have produced
his death. Bertoch responds that the stress in responding to the fire
alarm caused the fatal heart attack, and there is no substantial evidence to
support the Boards conclusion that his death did not arise out of his
At the hearing, the evidence presented included the Lake County Coroners autopsy report
that attributed Bertochs death to heart disease and stated, in consideration of the
circumstances in action of fire, manner of death appears to be accident.
Bertochs death certificate lists severe coronary atherosclerotic heart disease due to circumstances in
action of fire as the cause of death. Bertochs cardiologist stated in
a letter stress, no matter what the mechanism, can have an adverse effect
on the overall clinical situation in this type of patient. Could stress,
in the form of a fire in a patient with this extensive disease
be fatal? In my opinion, yes. The doctor also estimated that
the expected mortality rate of someone with Bertochs condition was twenty percent per
year. The Court of Appeals concluded that a doctors testimony can only
be considered evidence when he states that his conclusion is based on reasonable
medical certainty that the fact is true or untrue. Because the doctors
testimony fell short of a reasonable degree of certainty, his conclusions were not
definite. While it is true that when a doctors testimony falls short
of reasonable medical certainty, such evidence cannot by itself support a verdict, the
testimony can serve as probative when considered in conjunction with other relevant evidence.
Noblesville Casting Div. of TRW, Inc. v. Prince, 438 N.E.2d 722, 731
(Ind. 1982). Here, the doctors testimony is to be considered together with
the Coroners report and death certificate.
Citing United States Steel Corp. v. Dykes, 238 Ind. 599, 611, 154 N.E.2d
111, 117 (1958), the Court of Appeals reasoned, Bertoch must demonstrate that his
heart failure was either preceded by some untoward or unexpected incident, or resulted
from the aggravation of a previously deteriorated heart or blood vessel. This
formulation is too restrictive. Evans v. Yankeetown Dock Corp., 491 N.E.2d 969,
974 (Ind. 1986), dealt with the requirement that a compensable injury or death
occur by accident. We expressly rejected the untoward or unexpected incident requirement.
Evans discussed workers compensation coverage for incidents of on-the-job occurrence of a
pre-existing injury or disease. The Court held that the statutory phrase injury
or death by accident means unexpected injury or death and does not require
an unusual event precipitating the death. Id. at 975. Evans concluded
that coverage of such an occurrence is to be resolved by application of
arising out of and in the course of employment. Id. Hansen
v. Von Duprin, Inc., 507 N.E.2d 573, 576 (Ind. 1987), further explained that
even though an employee like Bertoch may have a physical condition that renders
him more susceptible than the average person to injury, an injury arises out
of employment if there is a causal link to an injury sustained on
the job. Even if a preexisting condition contributed to the injury, the
employee is entitled to recover for the full extent of the injury, including
an aggravation or triggering of a pre-existing injury, causally connected with the employment.
Id. at 577.
The Court of Appeals also suggested that Bertochs job as a security guard
was inherently stressful and that the stress occasioned by the fire was not
above and beyond the ordinary stresses of his job, so his death was
non-compensable. This seems dubious. Bertochs duties were mostly mundane, such as
checking to see whether the doors were locked, turning off lights, and signing
people in and out of the building. He was rarely, if ever,
called upon to respond to emergencies such as the fire in this case.
In any event, as this Court explained in Evans and Hansen, whether
an injury resulted from an unusual event is not the dispositive question.
The issue is merely whether the injury itself was unexpected. Evans, 491
N.E.2d at 975; Hansen, 507 N.E.2d at 577. Moreover, the Single Member
found that Bertochs response to the alarm required unusual physical effort and the
Board did not address that issue.
A reviewing court will not disturb the findings of fact of the Workers
Compensation Board if the findings are supported by substantial evidence. Outlaw v.
Erbrich Prods., 777 N.E.2d 14, 26 (Ind. Ct. App. 2002). In this
case, we hold that the evidence does lead to a result contrary to
the Boards findings. Bertochs doctors statement that stress, such as a fire,
could be fatal was supplemented by the coroners report and the death certificate
both attributing the death to Bertochs actions in response to the fire.
His expected mortality rate in the course of the entire year was twenty
percent. He died in the stairwell and was alone at the time.
The fire extinguisher was dislodged and the alarm pulled. Although Bertoch
suffered from a severe preexisting condition, the expert medical opinions and the circumstances
surrounding his death are compelling evidence that the fire and his attempted response
to it aggravated his condition and ultimately contributed to his fatal heart attack.
We conclude that the Boards finding in this case that Bertochs death
did not arise out of and in the course of his employment is
not supported by substantial evidence. Bertochs claim is therefore compensable.
The decision of the Board is reversed. This case is remanded to
the Board with instructions to affirm the decision of the Single Hearing Member.
Shepard, C.J. and Dickson, Sullivan and Rucker, JJ., concur.
The Board first reversed the Single Members award, finding tersely that the
death was not clearly co
nnected to his work-related activities. The Court of
Appeals by memorandum opinion remanded for more specific findings. The Board then
entered the finding quoted in text.
Bertoch was employed by U.S. Security which had an agreement with NBD
to provide security to the building. The Single Member found NBD secondarily
liable and the parties do not challenge this on a