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, handrailequipped 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