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Manous3/31/2005
e result of a cause personal to Christos. See Milledge, 784 N.E.2d at 931. Here, Manous presented evidence that: (1) there was no sign of forced entry or damage to the premises, and (2) the police informed Manousogianakis that they found an undisclosed amount of money on the premises after the murder and that Christos's death resulted not from a robbery, but from a personal matter. In response, Manousogianakis argues that the police statements constitute inadmissible hearsay which neither the Board nor this court may consider.
It is well established that the Board may not base its decisions solely upon inadmissible hearsay. Neidige v. Cracker Barrel, 719 N.E.2d 441, 444 (Ind. Ct. App. 1999). There must be a "minimum level of reliability" present in the evidence considered by the Board. Id. However, inadmissible hearsay must be objected to in order to preserve the issue for review. Id. Incompetent evidence may support the Board's findings where there is no objection. Id. In this case, Manousogianakis did not object to the introduction of the police statements, and, thus, it was proper for the Board to consider those statements.
Nevertheless, as fact-finder, the Board weighs the evidence before it and is free to disregard completely any portion thereof. See Weiss v. State, 735 N.E.2d 1194, 1197 (Ind. Ct. App. 2000) (fact-finder responsible for weighing conflicting evidence and determining witness credibility). Here, the police statement that Christos's murder was the result of a personal matter did not appear in the Board's findings, and, as such, it is clear that the Board attributed little, if any, weight to that statement. In addition, there was evidence that Christos routinely kept the back door unlocked while he was at the restaurant, that he usually kept approximately $1,000 in coins in a cabinet drawer in his office, that the drawer was "always closed," and that when the police arrived to investigate the murder, the drawer was open. Transcript at 24. Manous's argument amounts to a request that we reweigh the evidence, which we cannot do. We conclude that the Board did not abuse its discretion when it concluded that Manous failed to overcome the presumption that Christos's murder arose out of his employment.
Because Manousogianakis demonstrated that Christos's murder occurred in the course of his employment and because Manous failed to rebut the presumption that the murder arose out of his employment, the Board did not err when it determined that Manousogianakis is entitled to worker 's compensation benefits.
Cross-Appeal
Manousogianakis first asserts that Manous's appeal was in bad faith and undertaken for the purpose of delay and that she is entitled to appellate attorney's fees pursuant to Indiana Appellate Rule 66(E). That rule provides, in pertinent part: "The Court may assess damages if an appeal . . . is frivolous or in bad faith. Damages shall be in the Court's discretion and may include attorney['s] fees." Our discretion to award attorney fees under Indiana Appellate Rule 66(E) is limited, however, to instances when an appeal is permeated with meritlessness, bad faith, frivolity, harassment, vexatiousness, or purpose of delay. Thacker v. Wentzel, 797 N.E.2d 342, 346 (Ind. Ct. App. 2003). Additionally, while Indiana Appellate Rule 66(E) provides this court with discretionary authority to award damages on appeal, we must use extreme restraint when exercising this power because of the potential chilling effect upon the exercise of the right to appeal. Id. A strong showing is required to justify an award of appellate damages, and the sanction is not imposed to punish mere lack of merit, but something more egregious. Tioga Pines Living Ctr., Inc. v.
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