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Manous3/31/2005
ak room, sitting in a chair with blood on the floor.
6.That the killing occurred between the time the restaurant closed at approximately 3:00 p.m. and 5:00 p.m. when Mrs. Manousogianakis returned to the restaurant and found her husband.
7.That at the time the police responded to the 911 call made by Mrs. Manousogianakis[,] they found an opened cabinet door/drawer in Christos's office.
8.That the cabinet the police found opened was the cabinet in which Christos normally kept approximately $1,000.00 in coins.
9.That the police found an undisclosed amount of cash in an undisclosed location at the restaurant at the time of their investigation.
10.That five years have passed and no motive for the shooting has been determined, and the investigation by the Elkhart Police Department has not been closed.
11.That no arrests have been made in the murder case.
1.That Christos was murdered in the course of his employment with Manous .
2.That Christos['s] death resulted from a neutral risk and not one personal to the deceased.
3.That the positional risk doctrine is applicable.
4.That Christos['s] death arose out of his employment.
1. That Pauline Manousogianakis and their three dependent sons are entitled to benefits under the Worker's Compensation Act.
Appellant's App. at 4-6 (emphases added). Manous appealed to the Full Board, which affirmed the Single Hearing Member's decision following a hearing. This appeal ensued.
DISCUSSION AND DECISION
Worker's Compensation Claim
The Worker's Compensation Act (the "Act") authorizes the payment of compensation to employees for "personal injury or death by accident arising out of and in the course of the employment." Ind. Code ยง 22-3-2-2(a). An accident occurs "in the course of employment" when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is fulfilling the duties of employment or while engaged in doing something incidental thereto. Milledge v. Oaks, 784 N.E.2d 926, 929 (Ind. 2003). 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. Id. The nexus is established when a reasonably prudent person considers the injury to be born out of a risk incidental to the employment, or when the facts indicate a connection between the injury and the circumstances under which the employment occurs. Id.
The risks incidental to employment fall into three categories: (1) risks distinctly associated with employment, (2) risks personal to the claimant, and (3) risks neither distinctly associated with employment nor distinctly personal in character. Id. at 930. "Risks in category number one are those we intuitively think of as work connected"; risks in category number two are those "caused by a pre-existing illness or condition unrelated to employment"; and risks in category number three are "neutral risks." See id. at 930, 931 n.1. While risks in categories one and three are generally compensable under the Act, risks personal to the claimant are not. See id. at 930.
Whether an injury arises out of and in the course of employment is a question of fact to be determined by the Board. Waldridge v. Futurex Indus., 714 N.E.2d 783, 785 (Ind. Ct. App. 1999), trans. denied. Both requirements must be met before compensation is awarded, and neither alone is sufficient. Milledge, 784 N.E.2d at 929. The person who seeks worker's compensation benefits bears the burden of proving both elements. Id.
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