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Manous3/31/2005
ecedent on this court, the positional risk doctrine must be applied in cases of neutral risks. Milledge, 784 N.E.2d at 934. As Professor Larson aptly stated:
Occasionally an assault occurs for which no explanation whatever appears. . . . Nothing connects it with the victim privately; neither can it be shown to have had a specific employment origin. If the claimant is in fact exposed to that assault because he or she is discharging employment duties at that time and place, there is no better reason here than in the explained fall or death cases to deny an award merely because claimant cannot positively show that the assault was motivated by something connected with the work.
Arthur Larson & Lex Larson, Larson's Workers' Compensation Law § 8.03 , at 8-64 (2004).
Manous also makes a number of policy arguments in support of its position. Specifically, Manous asserts that application of the positional risk doctrine in unexplained murder cases places a burden of proof on employers that is impossible to meet and that it may lead to interference with criminal investigations and "wrongdoers profit from their wrongful conduct." Brief of Appellant at 11. Initially, we note that the discussion in Milledge disposes of Manous's first policy argument. While we agree that employers face a formidable evidentiary hurdle in such circumstances, the Milledge court determined that employers should bear the risk of loss of neutral risks. The court acknowledged that neutral risks create risk of loss problems "because the risk does not fall clearly upon the employer or the employee," but reasoned:
Either the employer or the employee must bear the loss; to show connection with the employment, there is at least the fact that the injury occurred while the employee was working; to show connection with the employee there is nothing; therefore, although the work connection is slender, it is at least stronger than any connection with the claimant's personal life.
Milledge, 784 N.E.2d at 932 (quoting Larson, supra, § 4.03, at 4-3). Further, the court noted that application of the doctrine to neutral risks comports with the Act's humane purposes. Id.
Manous's remaining policy arguments are likewise unpersuasive. First, Manous fails to explain how application of the positional risk doctrine in unexplained murder cases would lead to greater interference with ongoing criminal investigations, as it contends. Indeed, under the current regime, the employer must conduct an independent murder investigation to defend itself; under the proposed regime, the claimants must do so in order to prosecute their claims. Second, Manous's assertion that application of the doctrine might allow wrongdoers to benefit from their wrongful conduct is mere speculation. In any event, "arguments concerning public policy are best addressed to our legislature, and not this court, which must adhere to binding precedent." Comfax Corp. v. North Am. Van Lines, Inc., 587 N.E.2d 118, 124 (Ind. Ct. App. 1992). We hold that the positional risk doctrine applies when an employee is murdered without explanation and that the Board properly applied the positional risk doctrine in this case.
Issue Two: Sufficiency of the Evidence
Manous next contends that Manousogianakis failed to prove both elements necessary to obtain compensation, namely, that Christos's death arose out of and in the course of his employment with Manous. Again, both requirements must be met before compensation is awarded, and neither alone is sufficient. Milledge, 784 N.E.2d at 929. Whether an injury arises out of and in the course of employment is a question of fact to be determined by the Board. Waldridge, 714 N.
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