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Neidige v. Cracker Barrell11/17/1999
FOR PUBLICATION
OPINION - FOR PUBLICATION
Marla Neidige appeals the Indiana Worker's Compensation Board's (the Board) denial of her application for adjustment of claim. Neidige raises one issue on appeal, which we restate as: whether the Board's Conclusion that Neidige was engaged in horseplay at the time of her injury is supported by the evidence.
We reverse and remand.
The facts most favorable to the Board's findings reveal that Neidige slipped and fell while working as a waitress at a Cracker Barrel restaurant. Steven Smart, the restaurant's manager at the time of the incident, was not present when Neidige fell, but he conducted an investigation into the surrounding circumstances. This investigation revealed that Neidige, in response to a dare, jumped onto a tray that another employee had thrown on the floor. The tray slipped, and Neidige fell. Smart later disciplined the co-worker who had thrown the tray onto the ground for participating in "horse play," and he obtained a written statement from a second co-worker who indicated that Neidige had been "playing around" at the time she jumped on the tray. The Board concluded that Neidige was engaged in horseplay at the time she was injured; therefore, it denied her claim. This appeal ensued.
Neidige argues that the Board's Conclusion that she was engaged in horseplay at the time of her injury is erroneous. It is the duty of the Board, as the trier of fact, to make findings that reveal its analysis of the evidence and are specific enough to permit intelligent review of the Board's decision. K-Mart Corp. v. Morrison, 609 N.E.2d 17, 27 (Ind. Ct. App. 1993), trans. denied. We will not reweigh the evidence or assess the credibility of witnesses. Id. We employ a two-tiered standard of review. We will review the evidence in the record to see if there is any competent evidence of probative value to support the Board's findings and then examine the findings to see if they are sufficient to support the decision. Id. We will consider only the evidence most favorable to the award, including any and all reasonable inferences deductible from the proven facts. Id.
The Worker's Compensation Act covers accidents that arise out of and in the course of employment. Ind. Code ยง 22-3-2-2 (1998); Nelson v. Denkins, 598 N.E.2d 558, 560 (Ind. Ct. App. 1992). "When an injury results from horseplay, a participant in the horseplay is not entitled to workmen's compensation, because his acts were not for the benefit of the employer, and therefore did not arise out of the employment." Fields v. Cummins Employees Fed. Credit Union, 540 N.E.2d 631, 638 (Ind. Ct. App. 1989). The injured person must have been an active participant in the horseplay, and not merely an innocent victim. Id.
Neidige testified that she slipped on a tray while a co-worker was arguing with her about work-related responsibilities. Neidige testified that she did not know the tray was on the floor. The Board found that Neidige's testimony regarding these events was not credible. We may not review this determination. K-Mart Corp, 609 N.E.2d at 27.
The Board did find the testimony of Smart to be credible. The Board also found that the exhibits presented by Cracker Barrel at the hearing supported Smart's testimony. Again, we may not review the Board's determinations regarding the credibility of witnesses and the weight to be given the evidence. Id. Nevertheless, when the issue is properly preserved and raised, we must review the evidence that supports the Board's findings to determine whether it is competent. Id.
If all of the evidence regarding the circumstances that led to Neidige's injury were competent, it
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