Morris v. Custom Kitchen & Baths

64 N.E.3d 912

John C. MORRIS, Appellant–Plaintiff,

v.CUSTOM KITCHEN & BATHS, Appellee–Defendant.

No. 93A02–1601–EX–179.

Court of Appeals of Indiana.

Dec. 7, 2016.

Robert W. Rock, Gerling Law Offices, P.C., Evansville, IN, Attorney for Appellant.

Doris L. Sweetin, Allen & Newman, PLLC, Indianapolis, IN, Attorney for Appellee.

ROBB, Judge.

Case Summary and Issue

[1] John Morris is a licensed building contractor in Vanderburgh County, Indiana, and the sole proprietor of Custom Kitchen & Baths ("CKB"). Morris often uses his contractor's license, skills, tools, and vehicle in volunteer community projects, particularly with the Boy Scouts of America, in which his son is a participant. In August 2012, Morris suffered an injury while constructing a 10' x 10' garden storage shed ("Olivet Project") for Olivet Presbyterian Church ("Church") in Evansville, Indiana. The Olivet Project was constructed as a volunteer Boy Scout project and Morris was not compensated for its construction. Following his injury, Morris filed claims with CKB's worker's compensation carrier, the Church's insurance company, and the liability carrier for the Boy Scouts, all of whom paid money to or on behalf of Morris. In 2013, Morris filed an Application for Adjustment of Claim with the Indiana Worker's Compensation Board ("Board"), which a Single Hearing Member denied. Morris then appealed to the full Board, which affirmed the Single Member's decision. Morris appeals from the Board's denial of his Application for Adjustment of Claim, raising one issue for review: whether his injury arose out of and in the course of his employment. CKB cross-appeals, seeking reimbursement of monies paid to or on behalf of Morris. Concluding Morris' injury arose out of and in the course of his employment, and is therefore covered by Indiana's Worker's Compensation Act, we reverse the decision of the Board and remand for a determination of disability benefits.

Facts and Procedural History¹

[2] In 2011, Morris obtained his general contractor's license and formed his sole proprietorship, CKB. Through his business, Morris designs and renovates kitchens and baths from start to finish. Prior to 2011, Morris owned a business called Envision Designs and sold cabinets and countertops.

[3] As a licensed contractor, Morris often performs volunteer community service projects involving carpentry or construction, for which he is not compensated, either through his church or the Boy Scouts. Morris' son, Brad, was a Boy Scout and Morris was an Assistant Scout Manager. Morris testified that since 2003, he has performed thirteen Boy Scouts' community service projects in Vanderburgh County and Warrick County; through these community service projects, he donates the building materials as well as his skills, tools, contractor's license, and vehicle. While it was not his "primary concern for doing the [community service] projects," Morris stated he receives a substantial amount of business and goodwill from these projects. Transcript at 45. He testified,

[I]t was a matter of working with other scout families and working with friends of scout families and by doing that I obtained a lot of business.... [B]ut just in the general course of the project you meet a lot of parents and they [ask] what do you do and, of course, some of them know and some of them don't. And they engage me and [say] hey can you come by and look at this project for me and I just—a lot of what do you call it—networking....

Tr. at 44 –45. At the Single Member Hearing, Morris produced three witnesses who testified they hired Morris to perform work, for which he was paid, after observing his work on certain community service projects. For example, David Hayhurst, a Boy Scout acquaintance of Morris, testified he "had seen [Morris] do a fair bit of work through the [Boy] Scouts and seemed like he really knew what he was doing. So, that's why we went ahead and [hired Morris]." Id. at 19. In addition, Amy Johnson, a member of Morris' church, testified she hired Morris to perform work at her home because she "knew of [Morris'] skills and what he did through [Boy Scouts]—known him for years and years through there. That he was a contractor, designed kitchens, did all that kind of work." Id. at 34.

[4] In 2012, Morris and his son approached the congregation of the Church regarding the Olivet Project. They promoted the Olivet Project to the Church as a Boy Scout venture, and the Church approved the Olivet Project and its design. Brad planned a significant amount of the Olivet Project, and the Church did not employ, compensate, or contract with Morris or CKB, and had no control or input over the Olivet Project except for approving the project and its design. Further, the Boy Scout troop posted a plaque next to the project stating the Olivet Project was constructed as a Boy Scout project.

[5] However, the Olivet Project was constructed under Morris' supervision and could not have been performed without his skills, tools, materials, and contractor's license. Benjamin Miller, the Vanderburgh County Building Commissioner, testified the Olivet Project could only be constructed if Morris was a properly licensed building contractor in Vanderburgh County. Moreover, Vanderburgh County ordinances required Morris to display his contractor's license number on his work vehicle and carry his license with him at the construction site. If Morris failed to obey the ordinances, he would be subject to a fine. Morris, through his business account, purchased and donated $1,244.46 in building materials for the Olivet Project. When Morris prepared his tax return, he deducted the cost of the donated materials as a business expense.

[6] On August 6, 2012, while working on the Olivet Project, Morris fell from the roof of the storage shed and suffered a fracture to his right leg. As a result of the fractured leg, Morris underwent three separate surgeries. Following his injury, Morris filed a claim with CKB's worker's compensation insurance carrier, West Bend Mutual Insurance Company. West Bend paid Morris $5,757.14 in temporary total disability benefits and $87,654.60 for his medical treatment. Morris also submitted a claim to Church Mutual Insurance, the Church's liability insurance carrier. Church Mutual paid an additional $10,000 on behalf of Morris. The Boy Scouts of America's insurance carrier, Health Special Risk, Inc., also paid medical bills on behalf of Morris.

[7] On February 4, 2013, Morris filed his Application for Adjustment of Claim with the Board. A hearing before a Single Member of the Board was held on November 3, 2014. The Single Member denied Morris' claim on January 26, 2015, and Morris filed his Application for Review by the full Board shortly thereafter.

[8] After a hearing before the full Board, the full Board adopted the findings of the Single Member, modified the findings by adding findings number six and seven, and affirmed the denial of Morris' Application for Adjustment of Claim. The Board determined Morris did not meet his burden to show his injuries arose out of and occurred in the course of his employment:

1. [Morris] was hurt while building a yard barn structure as part of his son's Eagle Scout project.

2. [Morris'] business is as a building contractor but at the time of his injury he was not being paid for the project.

3. [Morris] introduced evidence that he worked on several Eagle Scout projects with others seeking goodwill and this translated into an increased clientele for the business.

4. [Morris'] injury did not arise out of his employment with Custom Kitchens.

5. [Morris] should take nothing on his Application for Adjustment of Claim filed February 4, 2013.

6. [Morris] is and has been a committed parent, supporter and leader in his sons' Boy Scout troop.

7. [Morris'] injury arose out of an activity that was motivated by [Morris'] desire to further his son's Eagle project in particular and to further the goals [of] his son's Boy Scout troop in general and did not arise from the business of which [Morris] is the sole proprietor.

Appellant's Appendix at 4–9. Morris now appeals; CKB cross-appeals, seeking reimbursement of monies paid to or on behalf of Morris.

Discussion and Decision

I. Standard of Review

[9] The Indiana Worker's Compensation Act is to be liberally construed to effectuate its humane purpose. Daugherty v. Indus. Contracting & Erecting, 802 N.E.2d 912, 919 (Ind.2004). In reviewing a challenge to a decision of the Board, 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. Kovatch v. A.M. Gen., 679 N.E.2d 940, 942 (Ind.Ct.App.1997), trans. denied. We neither reweigh the evidence, nor judge the credibility of the witnesses. Id. at 942–43. "We must disregard all evidence unfavorable to the decision and must consider only the evidence and reasonable inferences therefrom which support the Board's findings." Id. at 942. The burden rests with the claimant to prove a right to compensation under the Worker's Compensation Act. Danielson v. Pratt Indus., Inc., 846 N.E.2d 244, 247 (Ind.Ct.App.2006). "Although we are not bound by the Board's interpretations of law, we will reverse the Board's decision only if the Board incorrectly interpreted the [Worker's Compensation] Act." Krause v. Ind. Univ.–Purdue Univ. at Indianapolis, 866 N.E.2d 846, 851 (Ind.Ct.App.2007), trans. denied.

II. Arising Out of and in the Course of Employment

[10] Indiana Code section 22–3–2–2(a) mandates the payment of compensation to employees for "personal injury or death by accident arising out of and in the course of the employment...." The dual requirements the accident be "arising out of" and "in the course of" employment must both be met, and neither alone is sufficient. Conway v. Sch. City of East Chicago, 734 N.E.2d 594, 598 (Ind.Ct.App.2000), trans. denied. An injury "arises out of" employment when a causal nexus exists between the injury...