ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
EDWARD L. MURPHY SEAN E. G. KENYON
DIANA C. BAUER ROBERT J. KONOPA
Miller Carson Boxberger & Murphy, LLP Konopa & Murphy, P.C.
Fort Wayne, Indiana South Bend, Indiana
INDIANA MICHIGAN POWER COMPANY, ) ) Appellant-Defendant, ) ) vs. ) No. 93A02-9802-EX-103 ) RALPH ROUSH, ) ) Appellee-Plaintiff. )
the glottis could cover the epiglottis, which propelled the food into Roush's proximal trachea.
Dr. Stoller noted the piece of sandwich was just literally packed in there. Id. at 363.
Dr. Stoller opined that the food became lodged in Roush's throat because Roush failed to properly chew his food. Dr. Stoller also noted he could not see how Roush was able to get such a large amount of food in his mouth. Id. at 365. According to Dr. Stoller, Roush's manner of eating his sandwich and this particular choking incident could have happened anywhere. Id. at 366. On November 15, 1994, Roush died of cardiac dysrythmia caused by anoxic encephalopathy from asphyxiation as a consequence of the food being lodged in his upper airway.
Roush had a history of eating his food without chewing. Patty Olson, an I&M employee, began working with Roush in October of 1986. She and Roush often ate lunch at their desks, so she had numerous opportunities to observe Roush's eating patterns over the course of eight years. Olson testified that Roush always ate his food rapidly. He would eat a great deal, store it in his cheeks, store the food in his mouth, and then like wash it down with . . . whatever liquid he was drinking. Id. at 141. Olson spoke to Roush on occasion about the manner in which he ate. Roush responded by telling Olson this is just the way I am. Id. Roush also choked at work while eating an apple in July 1992.
Roush's widow sought workers' compensation benefits. An award was entered in favor of Roush and against I&M on February 28, 1997. On January 22, 1998, the Board
Lona v. Sosa, 420 N.E.2d 890, 894 (Ind. Ct. App. 1981). However, when the facts relating
to the question of liability under the Worker's Compensation Act are undisputed and lead to
only one reasonable inference, the determination of whether an injury or death arose out
of and in the course of employment is a question of law. Sanchez v. Hamara, 534 N.E.2d
756, 758 (Ind. Ct. App. 1989). We may reverse the Board's decision on a question of law
if the undisputed evidence reveals that the Board's decision is an incorrect interpretation of
law. Duvall, 621 N.E.2d at 1124.
1. Whether the Board's Findings Are Sufficiently Specific
I&M argues the Board's findings are not sufficiently specific to reveal the full basis of the Board's conclusion that Roush's choking death constituted an accidental injury arising out of and in the course of his employment. We note the Board has an obligation to enter specific findings of basic facts to support its finding of ultimate fact and conclusion of law. Perez v. United States Steel Corp., 426 N.E.2d 29, 32 (Ind. 1981). The Board's findings must be stated with sufficient specificity upon contested issues so as to allow intelligent review by a reviewing court. Starks v. National Serv-All, Inc., 634 N.E.2d 88, 90 (Ind. Ct. App. 1994).
To recover under the Worker's Compensation 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(a); Evans v. Yankeetown Dock Corp., 491 N.E.2d 969, 973 (Ind. 1986). An injury is accidental when it is the unexpected consequence of the usual exertion or exposure of the particular employee's job. Id. at 974. The words arising out of refer to
the origin or cause and are descriptive of the accident's character. Rogers v. Bethlehem Steel
Corp., 655 N.E.2d 73, 75 (Ind. Ct. App. 1995). 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, 638 N.E.2d 865, 869 (Ind. Ct. App. 1994). 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.
In this case, the Board's Findings of Fact and Conclusions of Law make no specific findings as to the causal nexus between Roush's choking death and the duties or services he performed for I&M. The Board merely states that Roush was on duty at his workstation engaging in an activity allowed by his employer when the choking incident occurred, and that the choking was an accidental injury arising out of and in the course of his employment. R. at 118-21. From these findings of fact and conclusions of law, we are unable to ascertain whether choking at one's work station is something that a reasonably prudent person would consider to be incidental to employment. Thus, we find the Board's Findings of Fact and Conclusions of Law inadequate to support its award of death benefits to Roush's widow.
2. Whether Choking Death Arose out of Employment
I&M further argues that the Board erred in finding that Roush's choking arose out of and in the course of his employment. We agree. For an injury to be compensable under the Worker's Compensation Act, it must both arise out of and in the course of the employment. Ind. Code § 22-3-2-2(a). Both requirements must be fulfilled before
compensation is awarded; neither alone is sufficient. See Four-Star Fabricators, Inc. v.
Barrett, 638 N.E.2d 792, 794 (Ind. Ct. App. 1994). Risks causing injury or death to an
employee may be divided into three categories: 1) risks distinctly associated with the
employment; 2) risks personal to the claimant; and 3) neutral risks which have no
particular employment or personal character. Rogers, 655 N.E.2d at 75. As explained in
Peavler v. Mitchell & Scott Machine Co., 638 N.E.2d 879, 881 (Ind. Ct. App. 1994), reh'g
denied, trans. denied:
Generally, the risks that fall in the first and third categories are covered by the Indiana Worker's Compensation Act. However, harms which arise in the second category, from risks personal to the claimant/employee, are universally noncompensable.
I&M argues that Roush's risk of choking was a personal risk which was not covered by the Worker's Compensation Act. Roush, in turn, contends that the risk of choking was distinctly associated with and arose out of his employment. Under Indiana law, risks which are incidental to and deemed arising out of employment include personal acts of employees which are reasonably necessary to their life, comfort or convenience, even though such acts are not technically acts of service. Indiana & Mich. Elec. Co. v. Morgan, 494 N.E.2d 991, 993 (Ind. Ct. App. 1986), reh'g denied, trans. denied. See also Vendome v. Gibson, 122 Ind. App. 604, 614-15, 105 N.E.2d 906, 910 (1952), reh'g denied (accident in which employee's fingers were severed when employee reached into employer's icemaker to get ice for personal consumption held arising out of and in course of employment); Prater v. Indiana
Briquetting Corp., 253 Ind. 83, 90, 251 N.E.2d 810, 813 (1969) (accident in which employee
was killed when struck by train while he was traveling to nearby business establishment to
purchase soft drinks held arising out of and in course of employment).
While some accidents involving such personal acts may be compensable under the worker's compensation statute as work-related injuries, the claimants still carry the burden of demonstrating some causal connection between the death and the employment. In Jablonski v. Inland Steel Co., 575 N.E.2d 1039 (Ind. Ct. App. 1991), reh'g denied, Daniel Jablonski suffered a fatal heart attack while at work. We affirmed the Board's finding that there was no causal connection between Jablonski's heart attack and his employment, stating: [t]he mere fact that Daniel was performing his usual everyday tasks when he suffered the fatal heart attack does not establish a right to worker's compensation benefits unless there was some event or happening beyond mere employment. Id. at 1043.
Other jurisdictions have addressed whether the risks associated with a choking death are personal risks which are compensable as work-related injuries. See Klein v. Terra Chems., 286 A.2d 568 (Md. Ct. Spec. App. 1972); Williams v. Industrial Comm'n, 232 N.E.2d 744 (Ill. 1967). In Forsythe v. Inco, 384 S.E.2d 30 (N.C. Ct. App. 1989), Forsythe, a mentally-retarded woman, was employed at a workshop. During a lunch break, she began choking on a peanut-butter sandwich. She was transported to the hospital, where a big glob of the sandwich was removed from her pharynx. She suffered brain damage and later died. Forsythe's mother filed a workers' compensation action, which was denied. The North Carolina Court of Appeals affirmed that decision, finding that Forsythe's choking did not
arise out of her employment. [T]he fact that she ate lunch on the premises did not subject
her to any greater risk from eating her food than would have been the case if she had taken
her lunch at home, or anywhere else for that matter. Id. at 32.
Similarly, in this case, 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. See footnote 4 Because Roush's choking was a personal risk, the Board erred in finding his death arose out of his employment. Thus, we reverse the Board's decision.
FRIEDLANDER, J., and NAJAM, J., concur.
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