Full Opinion

FILED Sep 04 2026, 9:26 am CLERK Indiana Supreme Court Court of Appeals and Tax Court IN THE Court of Appeals of Indiana Harrison County Parks & Recreation, Appellant-Defendant v. David Hussung, Appellee-Plaintiff September 4, 2026 Court of Appeals Case No. 26A-EX-780 Appeal from the Indiana Worker’s Compensation Board Linda Peterson Hamilton, Chairperson Application No. C-261136 Opinion by Judge Vaidik Judges Altice and Foley concur. Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 1 of 10 Vaidik, Judge. Case Summary [1] David Hussung was driving a work vehicle on an errand for his employer, Harrison County Parks & Recreation, when he briefly lost consciousness, ran off the road, and crashed. The Worker’s Compensation Board found that Hussung’s injuries arose out of his employment and awarded him benefits. Harrison County Parks now appeals. [2] We affirm the Board’s determination that Hussung’s injuries arose out of his employment. Hussung’s employment duties placed him behind the wheel of a moving vehicle at highway speed, which increased the risk and severity of the harm he suffered when he lost consciousness and the vehicle left the roadway. In addition, because Harrison County Parks’s appeal was unsuccessful, Hussung is entitled to a 5% increase in his award under Indiana Code section 22-3-4-8(f). We therefore remand with instructions to award him this increase. Facts and Procedural History [3] On October 12, 2023, while Hussung was working for Harrison County Parks, his supervisor sent him to drive to stores in Bedford and Bloomington to buy paint for a playground project at Hayswood Nature Reserve in Corydon. That morning, Hussung left his house around 5:30 a.m. in a Harrison County Parks vehicle. He had been on the road for about an hour when his vehicle ran off US Highway 150 near Paoli. The vehicle became airborne and landed in a briar patch. Hussung’s cruise control was set at 57 mph before the accident. Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 2 of 10 [4] Emergency responders arrived and transported Hussung to a hospital. The emergency-room physician noted that the accident was likely caused by syncope (fainting) rather than falling asleep. 1 Hussung was diagnosed with vertebral and sternal fractures and underwent surgery. [5] In November 2023, Hussung filed an application for adjustment of claim with the Board, and a single hearing member of the Board held a hearing in September 2025. The parties stipulated to Hussung’s syncope at the time of the accident, the course-of-employment nature of his injuries, the necessity of medical treatment, the amount of his medical bills, and any other benefits to which he would be entitled. See Appellant’s Br. p. 7 n.1. The only issue was whether Hussung’s injuries arose out of his employment as required by the Worker’s Compensation Act. Hussung testified that he had “no clue” why he ran off the road, that he was “wide awake” when he landed in the briar patch, 1 According to the National Institutes of Health: Syncope (the medical term for fainting) is when a person briefly passes out but then wakes up relatively quickly. Some people fall when they faint, but others may notice warning signs, such as dizziness, in time to sit or lie down. Syncope can happen when the brain doesn’t get enough blood for a short time. It usually only lasts for a few minutes before people slowly return to normal. Syncope is not a disease but a symptom with many possible causes. Most fainting is related to temporary drops in blood pressure and is not serious. Less commonly, heart rhythm problems or other medical conditions can cause syncope. Seeing a doctor can help determine the cause. National Institute of Neurological Disorders and Stroke, Syncope (Fainting), https://www.ninds.nih.gov/health-information/disorders/syncope-fainting [https://perma.cc/M522- NTCC]. Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 3 of 10 that he slept well the night before, and that he did not experience any issues before the accident. Tr. p. 12. The single hearing member found: Plaintiff’s syncopal episode was caused by a condition personal to him and unrelated to his employment duties with the Defendant. However, the stipulated evidence leads to the conclusion that Plaintiff’s employment duties at the time he suffered the syncopal episode increased the risk of harm and the resulting traumatic injuries were caused by the motor vehicle accident when his vehicle abruptly departed the highway. Therefore, Plaintiff has met his burden of proving that his accidental injuries arose out of his employment with Defendant. Appellant’s App. Vol. 2 p. 75. [6] Harrison County Parks sought review from the full Board. In March 2026, the Board affirmed and adopted the single hearing member’s decision. 2 [7] Harrison County Parks now appeals. 3 2 Although the details of the award are not at issue on appeal, the Board ordered Harrison County Parks to, among other things, (1) pay Hussung’s medical expenses from October 12, 2023, until the date he reached maximum medical improvement; (2) pay temporary total disability benefits from October 12, 2023, to January 21, 2024; and (3) pay Hussung $42,876 for his whole person impairment. 3 Hussung briefly argues in his Statement of the Case that “this appeal should be barred.” Appellee’s Br. p. 5. Because Hussung doesn’t fully develop this argument, we do not address it. Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 4 of 10 Discussion and Decision I. We affirm the Board’s determination that Hussung’s injuries arose out of his employment [8] The Worker’s Compensation Act provides for “compensation for personal injury or death by accident arising out of and in the course of the employment.” Ind. Code § 22-3-2-2(a). The claimant bears the burden of proving the right to compensation. Wright Tree Serv. v. Hernandez, 907 N.E.2d 183, 186 (Ind. Ct. App. 2009), trans. denied. As a general rule, the issue of whether an employee’s injury or death arose out of and in the course of his employment is a question of fact to be determined by the Board. Id. at 186-87. [9] Here, the parties stipulated that Hussung’s injuries arose “in the course of” his employment with Harrison County Parks. The sole question is whether they also arose out of it. “To ‘arise out of’ employment and therefore be compensable, there must be a causal connection between the injury and the worker’s employment.” Global Const., Inc. v. March, 813 N.E.2d 1163, 1168 (Ind. 2004). 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.” Milledge v. Oaks, 784 N.E.2d 926, 929 (Ind. 2003) (emphasis added). [10] The “risks incidental to employment” fall into three categories: (1) risks distinctly associated with employment, such as an employee’s finger being Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 5 of 10 severed while operating machinery; (2) risks personal to the claimant; and (3) risks neither distinctly associated with employment nor distinctly personal in character, i.e., neutral risks. Id. at 930. 4 Risks in categories (1) and (3) are generally covered by the Worker’s Compensation Act. Id. “However, risks personal to the claimant, those ‘caused by a pre-existing illness or condition unrelated to employment,’ are not compensable.” Id. (quoting Kovatch v. A.M. Gen., 679 N.E.2d 940, 943 (Ind. Ct. App. 1997), trans. denied). “The classic example of a risk personal to a claimant is a ‘syncopal episode’ or fainting spell, which usually leads to a fall and resulting injuries.” Waters v. Ind. State Univ., 953 N.E.2d 1108, 1114 (Ind. Ct. App. 2011), trans. denied. [11] Here, the Board found that Hussung’s syncopal episode was a risk personal to him. But the Board also found that Hussung’s employment duties, i.e., driving the vehicle, increased the risk of harm. When the employment itself “increases or contributes to the harm or risk suffered by an employee in an idiopathic fall,” the idiopathic origin of the fall does not defeat the claim. Kovatch, 679 N.E.2d at 943. The controlling rule is that “‘the effects of such a fall are compensable if the employment places the employee in a position increasing the dangerous effects of such a fall, such as on a height, near machinery or sharp corners, or in 4 In its reply brief, Harrison County Parks claims that this appeal centers on a dispute over “the positional risk doctrine.” Appellant’s Reply Br. p. 4; see also id. at 5, 6, 7, 8, 10, 11. But this doctrine only applies to neutral risks, which this case doesn’t involve. See Milledge, 784 N.E.2d at 932 (“We believe the positional risk doctrine is the appropriate analytical tool for resolving questions concerning injuries that result from neutral risks. It has been adopted by a majority of jurisdictions that have spoken on the subject.”). Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 6 of 10 a moving vehicle.’” Kovatch, 679 N.E.2d at 943-944 (quoting 1 Arthur Larson, The Law of Worker’s Compensation, § 9.01 (2019) (emphasis added)). The employment need not cause the idiopathic episode itself; it is enough that the work conditions aggravate the effects of the resulting fall. See Waters, 953 N.E.2d at 1114 (“But where an employee’s pre-existing condition combines with a circumstance of his or her employment to result in an injury, the employee is entitled to recover for the full extent of the injury.”). [12] As Harrison County Parks notes, there are several Indiana cases that involve employees falling on level or near-level ground due to personal conditions. See, e.g., Burdette v. Perlman-Rocque Co., 954 N.E.2d 925 (Ind. Ct. App. 2011) (an employee who had been experiencing vertigo fell to a concrete warehouse floor in an area that did not increase the risk of falling or the dangerous effects of the fall); Krutzsch v. Franciscan Alliance, No. 25A-EX-1705, 2025 WL 3123720 (Ind. Ct. App. Nov. 7, 2025) (mem.) (an employee who suffered from chronic medical conditions that caused dizziness fell near two shallow, handrail- equipped steps that posed no greater danger than the public faced), trans. denied. However, this is the first Indiana case to apply the “moving vehicle” rule set forth in Kovatch. [13] Applying that rule here, we agree with the Board’s determination. When Hussung’s syncope occurred, he was not standing on level or near-level ground; he was operating a Harrison County Parks vehicle at highway speed on a work errand. When Hussung lost consciousness, the vehicle ran off US Highway 150 and crashed, fracturing his vertebra and sternum. The traumatic injuries for Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 7 of 10 which Hussung sought benefits were caused by the crash—the abrupt departure of a moving vehicle from the highway—and not by the fainting alone. Although Hussung’s syncope was a risk personal to him, its idiopathic origin does not defeat his claim because his employment placed him in a position—operating a vehicle at highway speed—that increased the dangerous effects of his loss of consciousness. The Board therefore correctly found that his injuries arose out of his employment. 5 II. Hussung is entitled to a 5% increase in his award [14] Indiana Code section 22-3-4-8(f) provides that “[a]n award of the full board affirmed on appeal, by the employer, shall be increased thereby five percent (5%), and by order of the court may be increased ten percent (10%).” (Emphasis added). Hussung claims he is entitled to a 10% increase in his award, and not just the automatic 5%, based on his delay in receiving benefits and Harrison County Parks’s “blatant[]” disregard of controlling authority. Appellee’s Br. p. 19. 5 Courts in other jurisdictions applying the increased-risk analysis have uniformly compensated injuries suffered when an employee loses consciousness while driving. The Tennessee Supreme Court held compensable the injuries of an employee who lost consciousness while driving in the course of his work and struck a tractor-trailer, explaining that an injury that occurs due to an idiopathic condition is compensable if an employment hazard causes or exacerbates the injuries and that “[i]f driving a vehicle is part of an employee’s job, then it is certainly a hazard incident to employment.” Phillips v. A&H Const. Co., 134 S.W.3d 145, 152 (Tenn. 2004). The Alabama Court of Civil Appeals recently observed that “when an employee blacks out due to an idiopathic condition while operating a motor vehicle, the risk of injury is greater than if the employee was not so employed,” and that courts applying the increased-risk test “have uniformly awarded compensation in these circumstances.” MMR Constructors, Inc. v. Taylor, No. CL-2024-0979, 2025 WL 2990560, at *9 (Ala. Civ. App. Oct. 24, 2025). Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 8 of 10 [15] “Where this court affirms an award by the Board, the appeal was not frivolous, and appellate review was not thwarted by the actions of the employer, the award should be increased by 5%, but not by 10%.” Tanglewood Trace v. Long, 715 N.E.2d 410, 416 (Ind. Ct. App. 1999), reh’g denied, trans. denied; see also Graycor Indus. v. Metz, 806 N.E.2d 791, 802 (Ind. Ct. App. 2004) (awarding 10% based on the “extended period that [the claimant] ha[d] been prevented from obtaining worker’s compensation benefits” and the employer’s “patent disingenuity with regard to some of its arguments”), reh’g denied; Inland Steel Co. v. Pavlinac, 865 N.E.2d 690, 704 (Ind. Ct. App. 2007) (increasing award by 10% based on the employer’s arguments being “disingenuous or trivial in nature”). [16] Here, while there has undoubtedly been a delay in Hussung’s receipt of benefits, this is the first Indiana case to apply the “moving vehicle” rule to an idiopathic loss of consciousness that caused a vehicle crash. Because that question was one of first impression, there was no controlling authority for Harrison County Parks to disregard, and its appeal was neither frivolous nor an attempt to thwart appellate review. This case therefore lacks the disingenuous or trivial litigation conduct that warrants a 10% increase. We affirm the Board and remand with instructions to increase Hussung’s award by 5% under Section 22-3-4-8(f). [17] Affirmed and remanded. Altice, J., and Foley, J., concur. Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 9 of 10 ATTORNEYS FOR APPELLANT Katherine M. Haire Anthony L. Holton Inge V. Porter Reminger Co., L.P.A. Indianapolis, Indiana ATTORNEY FOR APPELLEE Kristi L. Fox Fox Law Offices, LLC New Albany, Indiana Court of Appeals of Indiana | Opinion 26A-EX-780 | September 4, 2026 Page 10 of 10