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FOR PUBLICATION
ATTORNEY FOR APPELLANT: BRUCE J. ALVARADO Orfanos & Alvarado, LLC Fortville, Indiana ATTORNEY FOR APPELLEE: NEIL E. GATH Fillenwarth Dennerline Groth & Towe, LLP Indianapolis, Indiana

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FILED
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA

Dec 29 2011, 9:24 am

CLERK

________________________________________________________________________ MOOREHEAD ELECTRIC CO., INC., ) ) Appellant-Defendant, ) ) vs. ) No. 93A02-1105-EX-457 ) JERRY PAYNE, ) ) Appellee-Plaintiff. ) ________________________________________________________________________ APPEAL FROM THE FULL WORKER'S COMPENSATION BOARD OF INDIANA Linda P. Hamilton, Chairperson Application No. C-196651 ________________________________________________________________________ December 29, 2011 OPINION-FOR PUBLICATION MATHIAS, Judge

Moorehead Electric Company, Inc. ("Moorehead") appeals the Worker's Compensation Board's award of benefits to Jerry Payne ("Payne"). Mooreheard argues that the Board erred when it determined that Payne was entitled to benefits for an injury he sustained outside of the workplace but that arose from a prior, compensable injury. Concluding that the Board properly awarded benefits to Payne for the subsequent injury, we affirm. Facts and Procedural History On September 2, 2008, Payne's right shoulder was injured during the course of his employment at Moorehead. Moorehead provided worker's compensation benefits for that injury and authorized two surgeries, which occurred on October 22, 2008 and April 7, 2009. After the April 7 surgery, Payne was instructed to wear a bulky shoulder brace twenty-four hours per day. On April 18, 2009, Payne was attending a wedding reception in Indianapolis. Payne was walking to the reception venue when he fell and re-injured his right shoulder. Specifically, an individual carrying a rod with a large bag walked toward Payne "wedg[ing] his way right between" Payne and his wife, and a couple approaching them from the opposite direction. To avoid being struck by the individual's rod and bag, Payne stepped to his right and his foot hit a raised grate surrounding the base of a tree causing Payne to fall. The shoulder brace Payne was wearing contributed to his fall because it obstructed Payne's vision including his ability to see his right foot and the raised grate on the sidewalk.

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Because Payne re-injured his shoulder, he had a third surgery on July 7, 2009, and remained under his doctor's care until December 18, 2009. Moorehead paid worker's compensation benefits to Payne until September 7, 2009, which was the date Payne was expected to reach maximum medical improvement after the April 7 shoulder surgery. But Moorehead refused to pay worker's compensation benefits for the third surgery and additional disability benefits therefrom. On May 27, 2010, Payne filed an Application for Adjustment of Claim with the Board alleging that the April 18 injury to his right shoulder arose out of and in the course of his employment with Moorehead. A single hearing member heard Payne's claim on November 9, 2010. Thereafter, a judgment was entered in Payne's favor. Moorehead was ordered to bear the cost of the third shoulder surgery and Payne was awarded temporary total disability benefits from September 7, 2009 through December 18, 2009. The single hearing member issued the following findings of fact to support its award: 1. Defendant employed Plaintiff as of September 2, 2008 at an average weekly wage of $1,140.48. 2. On that date Plaintiff sustained personal injury by accident arising out of and in the course of his employment with Defendant. The injury was to his right shoulder. 3. The employer had notice of the accidental injury and provided statutory medical treatment and compensation for temporary total disability. 4. Plaintiff underwent surgery on October 22, 2008 and a repeat surgery on April 7, 2009. 5. The surgical treatment for Plaintiff's work injuries left him with a temporary restriction of no use of his right arm. Plaintiff's right arm was also immobilized in a bulky cast or sling. 6. On April 18, 2009, while recovering from surgery, Plaintiff was walking to a wedding reception in downtown Indianapolis when he fell. 3

7. Plaintiff testified that his ability to walk was impaired by the brace, and also testified that his foot hit a raised portion of the grate on the sidewalk. Photographs of the brace and the location of Plaintiff's fall are in evidence. 8. Plaintiff was not performing any work-related activity at the moment of his fall. 9. Plaintiff's condition had not reached maximum medical improvement as of April 18, 2009. 10. Dr. Agrawal opined that but for the fall of April 19, 2009, Plaintiff's shoulder condition would have reached a state of maximum medical improvement as of September 7, 2009. Defendant therefore continued to pay Plaintiff compensation for temporary total disability through September 7, 2009. 11. Plaintiff underwent additional medical treatment due to the fall of April 18, 2009. 12. According to Dr. Agrawal[,] Plaintiff remained disabled and did not in fact reach maximum medical improvement until December 18, 2009. 13. Dr. Agrawal reported that Plaintiff sustained a 7% permanent impairment to the right upper extremity, and that the impairment was not affected by the fall of April 18, 2009. 14. The Board concludes by a preponderance of the evidence that Plaintiff's fall was in part caused by the circumstances of his recovery from the work injury, including the immobilization of his right arm and his use of the cast or sling. 15. The period of recovery from a medical procedure such as that undergone by Plaintiff is marked by some increased risk of re-injury, especially where the patient has medical restrictions or is wearing temporary medical supplies such as casts, slings, braces and the like. Although the risk of re-injury in this case was small, it did have a causal relationship to Plaintiff's recovery from the work injury. 16. The Board observes that the owner of the premises where Plaintiff fell on April 18, 2009 may have legal liability to both Plaintiff and Defendant. 17. Defendant's position in this case was undertaken in good faith. Appellant's App. pp. 5-7. Moorehead appealed the single hearing member's decision to the Full Board claiming that the "award is contrary to law." Id. at 27. The Board adopted and affirmed the single hearing member's decision on April 28, 2011. Moorehead now appeals.

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Discussion and Decision When we review a decision of the full Worker's Compensation Board, we are bound by the factual determinations of the Board and may only consider errors in the Board's conclusions. Obetkovski v. Inland Steel Indus., 911 N.E.2d 1257, 1260 (Ind. Ct. App. 2009), trans. denied. We will not disturb the Board's factual determinations unless the evidence is undisputed and leads inescapably to a contrary result. Id. Accordingly, on review of the Board's findings of fact, we must disregard all evidence unfavorable to the decision and may consider only the evidence and reasonable inferences drawn therefrom that support the Board's findings. Id. When reviewing the Board's decision, we neither reweigh the evidence nor assess the credibility of the witnesses. Id. While we are not bound by the Board's legal conclusions, we will disturb the Board's conclusions only if it incorrectly interpreted the Worker's Compensation Act. Id. It is the claimant's burden to prove a right to compensation under the Act. Id. The Worker's Compensation Act requires employers to provide their employees with "compensation for personal injury or death by accident arising out of and in the course of the employment[.]" Ind. Code

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