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Manous3/31/2005
FOR PUBLICATION
STATEMENT OF THE CASE
Manous, LLC ("Manous") appeals the decision of the Worker 's Compensation Board of Indiana (the "Board") awarding benefits to the family of an employee who was murdered while at his place of employment. Manous presents the following issues for our review:
1.Whether the positional risk doctrine applies when an employee is murdered at his workplace without explanation.
2.Whether sufficient evidence exists to support the Board's finding that Christos Manousogianakis's ("Christos") dependents are entitled to worker 's compensation benefits.
Christos's wife, Pauline Manousogianakis ("Manousogianakis") cross-appeals, seeking appellate attorney's fees and a ten percent increase in the worker 's compensation award.
We affirm and remand.
FACTS AND PROCEDURAL HISTORY
Christos, the president of Manous, was employed at the Mayberry Café, an Elkhart restaurant that was operated by Manous. On Sunday, December 27, 1998, Christos arrived at Mayberry Café between 5:30 a.m. and 6:00 a.m. to open the restaurant. Manousogianakis arrived later and worked at the restaurant with her husband until she left at 1:00 or 2:00 in the afternoon. Mayberry Café remained open until 3:00 p.m. on Sundays, and Christos stayed to close the restaurant.
At approximately 5:00 p.m., after Manousogianakis had called Christos twice at the restaurant and received no answer, she returned to Mayberry Café. Manousogianakis entered through the back door, which Christos routinely kept unlocked while he was at the restaurant, and discovered her husband's body in the break room. He had been shot once in the head, and the Elkhart County Coroner later determined that the death was a homicide.
On October 2, 2000, Manousogianakis filed an Application for Adjustment of Claim with the Board on behalf of herself and her three minor sons. Soon thereafter, Manous filed a subpoena duces tecum and a Request for Production of Documents to obtain all police and coroner records that pertain to Christos's death, but the Elkhart County Prosecutor objected. On March 15, 2001, Manous filed with the Board a Motion to Compel the police and coroner to comply with Manous's previous request for documents. In response, the State filed a Complaint for Declaratory Judgment and Issuance of a Protective Order in the Elkhart Circuit Court, and Manous filed a Counterclaim. The trial court found in favor of the State and awarded the requested relief.
In December 2003, Manous and Manousogianakis submitted briefs to the Single Hearing Member who subsequently found that Manousogianakis and her sons were entitled to worker 's compensation benefits. The Single Hearing Member found and concluded in relevant part as follows:
1.That Christos often worked in the restaurant as early as 5:30 a.m., preparing for the restaurant's daily business.
2.That Christos also regularly stayed over, after patrons and employees left at the end of the business day, to finish closing up the restaurant, complete the required duties to close the restaurant, and prepare it for the following day's business.
3.That Christos opened the restaurant on December 27, 1998 and stayed alone to close the restaurant on that day.
4.That on December 27, 1998, after all patrons and employees had left the restaurant, and while in the process of attending to the details of closing the restaurant for the day, Christos was shot and killed by an unknown assailant.
5.That at approximately 5:00 p.m. on December 27, 1998, Christos was found dead by his wife in the restaurant's bre
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