[Cite as State ex rel. Oakwood v. Indus. Comm., 132 Ohio St.3d 406, 2012-Ohio-3209.]
THE STATE EX REL. VILLAGE OF OAKWOOD, APPELLANT, v. INDUSTRIAL
COMMISSION OF OHIO ET AL., APPELLEES.
[Cite as State ex rel. Oakwood v. Indus. Comm.,
132 Ohio St.3d 406, 2012-Ohio-3209.]
Workers’ compensation—Determination of responsible employer when more than
one has an employment relation with the injured worker.
(No. 2011-0060—Submitted May 8, 2012—Decided July 18, 2012.)
APPEAL from the Court of Appeals for Franklin County,
No. 09AP-999, 190 Ohio App.3d 689, 2010-Ohio-5861.
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Per Curiam.
{¶ 1} In 2008, Craig Ali was a police officer for appellant, the village of
Oakwood. That spring, his department assigned him to perform traffic-control
duties on a highway-construction project overseen by appellee Kokosing
Construction Company, Inc. Ali was injured while performing those duties. We
must determine which entity was Ali’s employer for purposes of his workers’
compensation claim.
{¶ 2} It is undisputed that Kokosing generally used State Highway Patrol
officers for traffic control. Kokosing, however, had been directed by Oakwood
police officials to use Oakwood officers for traffic-control duties within village
boundaries, and Ali was assigned to the project. Ali wore his Oakwood police
uniform and sat in an Oakwood police cruiser that Kokosing had leased from the
village. Kokosing, not Oakwood, paid Ali for his services during this time.
{¶ 3} Ali was injured when his cruiser was hit by another vehicle. The
Bureau of Workers’ Compensation initially allowed the claim against Oakwood
but issued a later order naming Kokosing as the proper employer. Kokosing
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objected, and the matter was set for hearing before appellee Industrial
Commission of Ohio.
{¶ 4} A district hearing officer found that Kokosing was Ali’s employer
at the time of injury:
Injured Worker described being paid by Kokosing
Construction via check with their name on it, assigned to his work
by them, and directed as to his duties by them. Although Injured
Worker wore his Oakwood Village police officer uniform and sat
in the Village cruiser, the Oakwood Village Law Director testified
that Kokosing leased the vehicle for the duration of the Injured
Worker’s need of it. Examining the totality of the circumstances
persuades the Hearing Officer that Kokosing Construction
Company, Inc. was the Injured Worker’s employer on the date of
injury on this claim.
{¶ 5} A staff hearing officer reversed:
[T]he correct employer herein is Oakwood Village and not
Kokosing Construction. Per the unrefuted testimony of Kokosing
supervisor Mr. Schloss, Kokosing Construction was directed by
Sergeant Biggam of the Oakwood Village Police Department to
utilize Oakwood Village police officers for traffic control duties
within the geographic boundaries of Oakwood Village and to not
follow Kokosing’s usual practice of using Ohio State Highway
Patrol officers for such duties. Sergeant Biggam identified
claimant as an officer appropriate for such duty and arranged for
claimant’s use of an Oakwood Village police cruiser during his
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activities relative to traffic control at the Kokosing Construction
job site. Claimant wore his Oakwood Village police uniform and
was at the site of the accident for purposes of maintaining traffic
control, an activity not performed by Kokosing Construction.
Claimant would not have been engaged in traffic control functions
on 05/23/2008 were he not an Oakwood Village police officer, in
uniform and in a police cruiser, having been specifically authorized
to engage in such activity by his usual employer, Sergeant
Biggam/Oakwood Village.
{¶ 6} After further administrative appeal was refused, Oakwood filed a
complaint in mandamus in the Court of Appeals for Franklin County, alleging that
the commission had abused its discretion in finding it to be the amenable
employer. Oakwood argued that the commission had not considered the factors
listed in Lord v. Daugherty, 66 Ohio St.2d 441, 423 N.E.2d 96 (1981), rendering
its analysis fatally deficient. The court, however, found no abuse of discretion
and denied the writ, prompting Oakwood’s appeal to this court as of right.
{¶ 7} Our analysis centers on two decisions—Lord and Fisher v.
Mayfield, 49 Ohio St.3d 275, 551 N.E.2d 1271 (1990). These cases, as part of a
“totality of the circumstances” analysis, identified three factors to consider when
determining whether an injury occurred in the course of a claimant’s
employment—an issue distinct from that at bar. Despite this distinction,
Oakwood challenges the commission’s analysis because of the commission’s
failure to consider the Lord/Fisher factors. We must determine whether this was
an abuse of discretion.
{¶ 8} The claimants in Lord and Fisher were injured while deviating
from their normal workday routine, which raised a pivotal question: Did the
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injury occur in the course of and arise from employment? The answer, according
to Lord,
depends upon the “totality of the facts and circumstances”
regarding the accident. Such circumstances include: (1) the
proximity of the scene of the accident to the place of employment;
(2) the degree of control the employer had over the scene of the
accident; and (3) the benefit the employer received from the
injured employee’s presence at the scene of the accident.
Lord, 66 Ohio St.2d at 444, 423 N.E.2d 96.
{¶ 9} Fisher affirmed the Lord test. There, a teacher who also oversaw
the district’s flower fund was hurt when she stopped at another school to collect
donations. Again, the issue was whether her injuries arose from her employment,
and after applying the Lord factors, we held that it was. We cautioned, however,
that
workers’ compensation cases are, to a large extent, very fact
specific. As such, no one test or analysis can be said to apply to
each and every factual possibility. Nor can only one factor be
considered controlling. Rather, a flexible and analytically sound
approach to these cases is preferable. Otherwise, the application of
hard and fast rules can lead to unsound and unfair results.
Fisher, 49 Ohio St.3d at 280, 551 N.E.2d 1271.
{¶ 10} These observations support appellees’ assertion that consideration
of the Lord/Fisher factors should not be mandatory, as does the experience of the
Second District Court of Appeals in attempting to apply Lord and Fisher to an
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issue like that currently before us. Cooper v. Dayton, 120 Ohio App.3d 34, 696
N.E.2d 640 (1997), involved a Dayton policeman who moonlighted as an
undercover loss-prevention specialist at a local grocery. During one of his
grocery shifts, he confronted a shoplifter. When the suspect tried to flee, Cooper
pulled out his service revolver and badge, and identified himself as a Dayton
police officer. Cooper was injured in the encounter.
{¶ 11} As here, the issue was not whether the injury happened in the
course of employment; it clearly did. The question instead was, employment with
whom—the city or the grocery? To answer this, the court of appeals turned to
Lord and Fisher. It acknowledged at the outset that the two cases involved a
different issue, but felt that they nevertheless “provide[d] a viable analytical
framework to resolve the present dispute.” Id. at 42. The court quickly admitted,
however, that Lord’s three-pronged test proved “somewhat problematic when
applied to the facts” before it. Id. at 44.
{¶ 12} The difficulty was that applying a Lord/Fisher factor to each of
two employers can produce the same answer. For example, because the injury
occurred in the store’s parking lot, which was located within Dayton’s
boundaries, proximity could be attributed to either potential employer. The same
was true of control, with the court finding that “Groceryland retained day-to-day
control of its own parking lot * * *, [while] the city police department also
retain[ed] control of the property within the city limits for law-enforcement
purposes.” 120 Ohio App.3d at 47, 696 N.E.2d 640. The third factor—benefit to
the employer—was also not helpful, because both employers benefited from
Cooper’s presence. Ultimately, the court moved beyond Lord/Fisher and
concluded that when Cooper pulled his badge and revolver and identified himself
as a Dayton police officer, he was no longer acting as a store security guard but as
a Dayton policeman.
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{¶ 13} Consistent with Fisher and its support of a flexible approach to
certain complex workers’ compensation matters, we hold that the commission—
when confronted with two potential employers—may, but is not required to, use
any of the Lord/Fisher factors that it believes will assist analysis. If different
considerations are necessary, however, the commission must have the discretion
to use them. Therefore, we find that it did not abuse its discretion by not directly
discussing the three enumerated Lord/Fisher factors.
{¶ 14} The staff hearing officer examined the totality of what he
considered to be the relevant circumstances in this case and made determinations
supported by evidence in the record. We have “consistently recognized and
generally deferred to the commission’s expertise in areas falling under the
agency’s jurisdiction.” State ex rel. FedEx Ground Package Sys., Inc. v. Indus.
Comm., 126 Ohio St.3d 37, 2010-Ohio-2451, 930 N.E.2d 295, ¶ 27. Accordingly,
we defer to the commission’s expertise in finding Oakwood to be the amenable
employer.
{¶ 15} The judgment of the court of appeals is affirmed.
Judgment affirmed.
O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,
LANZINGER, CUPP, and MCGEE BROWN, JJ., concur.
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Stephen M. Klonowski, Law Director, and Christopher R. Fortunato, for
appellant.
Michael DeWine, Attorney General, and Derrick L. Knapp, Assistant
Attorney General, for appellee Industrial Commission of Ohio.
Elizabeth Krieder Wright, for appellee Kokosing Construction Co., Inc.
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