Woodard v. Cassens Transport Co.

[Cite as Woodard v. Cassens Transport Co., 2012-Ohio-4015.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY

GREGORY A. WOODARD,

PLAINTIFF-APPELLEE,
CASE NO. 14-11-22
v.

CASSENS TRANSPORT CO.,

DEFENDANT-APPELLANT,
-AND- OPINION

MARSHA P. RYAN, ADMR., OHIO BWC,

DEFENDANT-APPELLEE.

Appeal from Union County Common Pleas Court
Trial Court No. 10 CV 0348

Judgment Reversed and Cause Remanded

Date of Decision: September 4, 2012

APPEARANCES:

Corey V. Crognale for Appellant, Cassens Transport Co.

Craigg E. Gould for Appellee, Gregory A. Woodard

Derrick L. Knapp for Appellee, Admr. Ohio BWC
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PRESTON, J.

{¶1} Defendant-appellant, Cassens Transport Company (“Cassens”),

appeals the September 29, 2011 judgment of the Union County Court of Common

Pleas finding plaintiff-appellee, Gregory A. Woodard (“Woodard”), is entitled to

participate in the Workers’ Compensation Fund because of an injury he sustained

in the course of and arising out of his employment with Cassens. For the reasons

that follow, we reverse.

{¶2} Cassens is in the business of transporting automobiles. Woodard had

been employed as a “car hauler” for Cassens since 1976 and was assigned to

Cassens’ terminal located in Marysville, Ohio. As part of his job responsibilities,

Woodard loaded and delivered new cars to car dealerships throughout the

Midwest, eastern, and southern parts of the country. During a typical week,

Woodard was on the road for five or six days. Woodard was paid mileage for the

miles he drove, and he was also paid for loading and unloading the truck. While

employed with Cassens, Woodard traveled approximately 100,000 miles per year.

{¶3} The Federal Motor Carrier Safety Regulations (“FMCSR”) require

drivers like Woodard to keep a driver’s log to record every change in “duty status”

for each 24 hour period. See 49 C.F.R. 395.8(a). For example, Woodard must

record whether he is driving, on-duty but not driving, sleeper berth, or off-duty.

49 C.F.R. 395.8(b). “Off-duty” status means Woodard is not on duty, is not

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required to be in readiness to work, or is not under any responsibility for

performing work. See 49 C.F.R. 395.8(h)(1). Drivers such as Woodard are

required to keep this log to ensure that they accumulate the appropriate amount of

“off-duty” hours to be compliant with the FMCSR. During this time, the driver is

declared “out of service,” which means that the driver cannot operate his vehicle

until the expiration of the mandatory “off duty” period. See 49 C.F.R. 395.13.1

{¶4} Cassens’ collective bargaining agreement (“CBA”) with the

automobile transporters union states that “[c]omfortable, sanitary lodging shall be

provided by [Cassens] in all cases where an employee is required to take a

statutory rest period away from his home terminal * * *.” (Article 42, CBA).

The CBA allocates to Cassens the right to designate the place of lodging for their

drivers when the drivers are on the road and required to take their federally

mandated rest period. In addition to paying for gas, these accommodations are the

only expenses that Cassens is obligated to pay. Thus, Woodard is not reimbursed

for any other expenses—such as food, drink, or entertainment—incurred while on

duty or during his federally mandated “off-duty” time.

{¶5} As a means of meeting its lodging obligations under the CBA,

Cassens voluntarily participates in a program with Corporate Lodging Corporation

(“CLC”). This program includes a network of various hotels and motels across the

1
There was some implication in the briefs and at oral argument that the “duty status” classifications were
specifically derived from the CBA between Cassens and the automobile transporters union. There is no
evidence of this in the record.

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nation. Cassens employees such as Woodard are given a CLC credit card that can

only be used to purchase accommodations at a hotel or motel participating in the

program. Cassens employees are provided with a list of the participating hotels

and motels in each state.2 CLC handles the initial billing from the participating

hotels and motels, and then processes all the bills accumulated by Cassens

employees. CLC then submits one bill to Cassens to pay. Cassens receives a

reduced rate if their employees stay at the hotels and motels that participate in the

program with CLC. Cassens also saves on the time and administrative expense it

would cost their employees to process the lodging invoices of its 1,200 drivers by

having CLC handle the initial billing from the lodging accommodations.

{¶6} On March 1, 2010, Woodard left Marysville with one of Cassens’

trucks carrying a load of cars and drove to St. Louis, Missouri, where he

completed the majority of his scheduled deliveries. However, due to a delay

caused by an accident on the highway, Woodard was unable to reach the last two

dealerships on his schedule before they closed, and, as a result, was required to

stay overnight in the vicinity so that he could deliver the cars the next morning.

That night, Woodard stayed in a hotel in Fenton, Missouri and used the CLC credit

card issued to him by Cassens to pay for his accommodations.

2
Cassens employees are permitted to stay in non-participating hotels and motels so long as the rate is
reasonable. If this occurs, the employee is reimbursed directly by Cassens at a later time. However, the
record demonstrates that Woodard stayed in CLC approved accommodations during this particular run.

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{¶7} The next morning, on March 2, 2010, Woodard completed the last two

deliveries on his schedule. Woodard then called Cassens’ central dispatch for

further instructions. Cassens told Woodard to drive to Lafayette, Indiana to pick

up a “backhaul load” of cars. According to the record, a driver picks up a

“backhaul load” of cars from another Cassens’ terminal after he or she has

delivered all the cars on the original run. Having the driver pick up a “backhaul

load” allows Cassens to “maximize [the] loaded miles” so that the driver is not

driving an empty car carrier on the return trip to the home terminal. (Robinson

Depo. at 18). Woodard informed Cassens that he would be unable to reach the

Lafayette terminal to pick up the “backhaul load” before it closed at 4:00 p.m.

Cassens told Woodard that he could pick up the load the next morning, which

meant that Woodard would have to stay the night in a hotel.

{¶8} Woodard arrived in Lafayette, Indiana at approximately 4:30 p.m.

later that day. Woodard parked the truck, checked into the Quality Inn and Suites,

located within two or three miles of the Lafayette terminal, and used the CLC

credit card provided to him by Cassens. Woodard was considered “off-duty” in

his daily driver’s log at this point and was relieved of any responsibility for

Cassens’ car carrier while at the hotel. Later that evening, Woodard ordered a

pizza, watched T.V., and went to bed. Around 2:00 a.m., Woodard woke up to use

the bathroom. Woodard walked into the bathroom and slipped and fell on the tile

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floor, injuring his left knee. Woodard then scooted himself across the floor and

pulled himself up onto the bed, but he was unable to fall back asleep due to the

amount of pain and discomfort.

{¶9} A few hours later, at 5:30 a.m. on March 3, 2010, Woodard called

Gary Robinson, Cassens’ Marysville terminal manager, and informed him that he

had injured his knee and needed to seek medical attention. Robinson told

Woodard that he would contact the Lafayette terminal when it opened at 7:00 a.m.

and make arrangements to see a doctor. Two drivers from the Lafayette terminal

arrived at Woodard’s hotel. One driver took Woodard to a medical clinic, and the

other driver took Woodard’s truck to the Lafayette terminal. Robinson drove one

of Cassens’ pick-up trucks from Marysville to Lafayette to bring Woodard back to

Ohio.3 Woodard never returned to work for Cassens after sustaining this injury.

{¶10} Woodard filed an application for workers’ compensation benefits for

his injury, which was determined to be an acute left knee sprain. Woodard alleged

that he received the March 3, 2010 injury in the course of and arising out of his

employment with Cassens. A district hearing officer for the Industrial

Commission of Ohio allowed Woodard’s claim, finding that Woodard sustained

the injury in the course of and arising out of his employment with Cassens.

Cassens appealed the decision. In a subsequent review, a staff hearing officer for

3
According to the record, Marysville is approximately 200 miles from Lafayette, Indiana.

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the Industrial Commission allowed the claim, also determining that Woodard was

injured in the course of and arising out of his employment with Cassens. Cassens

again appealed the decision, but the Industrial Commission refused further review.

{¶11} On July 2, 2010, Cassens appealed the decision of the Industrial

Commission to the Union County Court of Common Pleas pursuant to R.C.

4123.512. Woodard then filed a petition with the trial court alleging his

entitlement to participate in the workers’ compensation system. Depositions of

Woodard and Robinson were submitted in the case. On April 27, 2011, Cassens

filed a motion for summary judgment. On May 3, 2011, Woodard filed a

memorandum contra to Cassens’ motion and his own motion for summary

judgment. On June 1, 2011, the trial court overruled both parties’ motions for

summary judgment.

{¶12} On July 6, 2011, a bench trial was held. Both Woodard and

Robinson testified. On August 19, 2011, the trial court issued its opinion, finding

Woodard was entitled to participate in the Workers’ Compensation System,

because he received his injury in the course of and arising out of his employment.

{¶13} On September 29, 2011, the trial court issued its final judgment

entry. Cassens now appeals from this judgment of the trial court, asserting the

following assignment of error:

THE TRIAL COURT’S DETERMINATION THAT
PLAINTIFF SUFFERED AN INJURY IN THE COURSE OF,

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AND ARISING OUT OF, HIS EMPLOYMENT WITH
CASSENS IS ERRONEOUS AND MUST BE REVERSED.

{¶14} In its sole assignment of error, Cassens argues that Woodard, a

traveling employee, was not injured in the course of his employment, because his

trip to the bathroom was a purely personal and private mission occurring while

Woodard was in off-duty status. Cassens further argues that Woodard’s injury did

not arise out of his employment because there was an insufficient causal

connection between his injury and his employment.

{¶15} An appeal from the Industrial Commission to a trial court under R.C.

4123.512 regarding a claimant’s right to participate in the workers’ compensation

scheme is a de novo determination of matters of law and fact. Oswald v. Connor,

16 Ohio St.3d 38, 42 (1985), citing Swanton v. Stringer, 42 Ohio St.2d 356, 359

(1975). Therefore, the Rules of Civil Procedure apply, and the trial court must

disregard the Industrial Commission’s decision and rationale. Steele v. Crawford

Machine, Inc., 184 Ohio App.3d 45, 2009-Ohio-2306, ¶ 11 (3d Dist.). Review of

the trial court’s decision is limited, however, and “‘[i]f the evidence before that

[trial] court is sufficient to support the result reached, [the reviewing] court will

not substitute its judgment.’” Hickle v. Hayes-Albion Corp., 3d Dist. No. 13-06-

24, 2007-Ohio-4236, ¶ 23, quoting Oswald v. Connor, 16 Ohio St.3d 38, 42

(1985).

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{¶16} Revised Code 4123.01(C) defines a compensable injury under the

Worker’s Compensation Act as:

* * * any injury, whether caused by external accidental means or

accidental in character and result, received in the course of, and

arising out of, the injured employee’s employment.

Thus, to be a compensable injury, it must occur “in the course of” and “arising out

of,” the claimant’s employment. R.C. 4123.01(C); Bralley v. Daugherty, 61 Ohio

St.2d 302, 303 (1980). The Supreme Court of Ohio has expressly recognized that

this test is conjunctive in nature, requiring each prong to be satisfied before

compensation is allowed. Fisher v. Mayfield, 49 Ohio St.3d 275, 277 (1990). As

a general rule, the worker’s compensation statute must be liberally construed in

favor of the employee; nevertheless, the claimant bears the burden to prove both

prongs of this two-prong formula. R.C. 4123.95; Fisher at 278.

{¶17} The Supreme Court of Ohio summarized the in the course of

employment prong of the statutory formula as follows:

The phrase “in the course of employment” limits compensable

injuries to those sustained by an employee while performing a

required duty in the employer’s service. “To be entitled to

workmen’s compensation, a workman need not necessarily be

injured in the actual performance of work for his employer.” An

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injury is compensable if it is sustained by an employee while that

employee engages in activity that is consistent with the contract for

hire and logically related to the employer’s business. Ruckman v.

Cubby Drilling, Inc., 81 Ohio St.3d 117, 120 (1998) (internal

citations omitted).

In analyzing whether an injury occurred in the course of employment, a court must

consider factors such as “time, place, and circumstances” of the injury to

determine the existence of a nexus between the employment and the activity

causing the injury. Fisher at 277. “If the injuries are sustained [off premises], the

employe[e] * * * must, at the time of his injury, have been engaged in the

promotion of his employer’s business and in the furtherance of his affairs.”

Ruckman at 121, quoting Indus. Comm. v. Bateman, 126 Ohio St. 279 (1933),

paragraph two of the syllabus.

{¶18} The second prong of the statutory formula requires that an injury

arise out of the employment. This inquiry in particular refers to a sufficient causal

connection between the employment and the injury. Fisher, 49 Ohio St.3d at 277.

“Whether there is a sufficient ‘causal connection’ between an employee’s injury

and his employment to justify the right to participate in the Workers’

Compensation Fund depends on the totality of the facts and circumstances

surrounding the accident, including the (1) proximity of the scene of the accident

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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 v. Daugherty, 66 Ohio

St.2d 441 (1981), syllabus.

{¶19} The Court of Appeals has recognized the traveling employee doctrine

in the worker’s compensation context. A traveling employee is one whose “work

entails travel away from the employer’s premises.” Pascarella v. ABX Air, Inc.,

12th Dist. No. CA98-01-002, *3 (Aug. 10, 1998) citing 2 LARSON, WORKERS’

COMPENSATION LAW (1997) 5-286, Section 25.00. Generally, a traveling

employee is considered to be in the course of his or her employment continuously

during an employment-related trip, except when a distinct departure on a personal

errand is shown. Pascarella at *4. See, also, Masden v. CCI Supply, Inc., 2d Dist.

No. 22304, 2008-Ohio-4396, ¶ 12 (claimant-construction worker was a traveling

employee in the course of his employment when he was injured in a fight after he

attempted to get motel guests to quiet down so co-workers and he could get

necessary rest for the next work day); Cline v. Yellow Transp., Inc., 10th Dist. No.

07AP-498, 2007-Ohio-6782, ¶ 18-20 (an over-the-road truck driver struck by a car

while crossing the street to eat at a restaurant located across from his hotel was on

a personal errand, and therefore, not entitled to workers’ compensation benefits).

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{¶20} Despite the fact that courts have recognized a traveling employee

doctrine, it is important to remember that:

[t]he Act is not meant to impose a duty on an employer as an

absolute insurer of the employee’s safety. Rather, the Act is intended

to protect employees against the risks and hazards incident to the

performance of their duties. * * * The mere fact that an injury

occurred during employment is not sufficient to establish entitlement

to benefits. Carrick v. Riser Foods, 115 Ohio App.3d 573, 577 (8th

Dist.1996).

In fact, a traveling employee “‘does not have a special status for the purpose of

coverage under the Ohio Workers’ Compensation Law’ and * * * entitlement to

benefits should be determined under the Fisher standard, requiring consideration

of the time, place, and circumstances of the injury.” Griffith v. Miamisburg, 10th

Dist. No. 08AP-557, 2008-Ohio-6611, ¶ 13, quoting Budd v. Trimble, 10th Dist.

No. 94APE04-589 (Dec. 22, 1994). For that reason, whether a traveling employee

or not, “[a]t the time of the injury, the employee must be performing a required

duty done directly or incidentally in the service of the employer as opposed to

personal business, disconnected with the employment.” Cline, 2007-Ohio-6782, at

¶ 15, citing Fletcher v. Northwest Mechanical Contractors, Inc., 75 Ohio App.3d

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466, 471 (6th Dist.1991), citing Indus. Comm. v. Ahern, 119 Ohio St. 41 (1928),

paragraphs two and three of the syllabus.

{¶21} This case is factually similar to Lewis v. TNT Holland Motor

Express, Inc., 129 Ohio App.3d 131 (9th Dist.1998) and Jones v. USF Holland,

Inc., 10th Dist. No. 10AP-537, 2011-Ohio-2368 where the Court of Appeals

determined that over-the-road truck drivers’ slip and fall accidents in hotel

bathrooms did not “arise out of” their employment to qualify for workers’

compensation benefits. Examining the Lord factors, the Court in Lewis reasoned:

“[i]t is difficult to conceive how his employer could have prevented Lewis from

slipping and falling while leaving the bathtub. The control over the bathtub

conditions was solely with the hotel. * * * [F]alling out of a bathtub after taking a

shower is not a risk incident to the duties of a long-distance truck driver.” Id. at

134. Similarly, the Tenth District in Jones reasoned that an over-the-road truck

driver’s slip and fall in a hotel bathroom while off-duty did not “arise out of” his

employment:

Contrary to [the truck driver’s] contention, the hotel was not in close

proximity to USF Holland’s truck terminal. Although USF Holland

did select the hotel and pay for [the truck driver’s] room, it had

absolutely no control over the scene of the accident. We recognize

that USF Holland received some benefit from [the truck driver’s]

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presence at the scene of the accident. USF Holland did benefit from

having a well-rested employee. It may also have benefited from [the

truck driver’s] decision to stay at the Howard Johnson Inn.

Nevertheless, [the truck driver] was not engaged in an activity that

was logically related to USF Holland’s business nor incidental to it

when he slipped on the bathroom floor after taking a shower. There

is simply an insufficient causal nexus between the highly personal

act of taking a shower and USF Holland’s business of transporting

cargo by truck. To conclude otherwise would convert the “arising

out of employment” prong into a simple “but for” test. Therefore, we

conclude as a matter of law that [the truck driver’s] injury did not

“arise out of” his employment as required by R.C. 4123.01(C).

2011-Ohio-2368 at ¶ 23.

{¶22} Like the truck drivers in Lewis and Jones, Woodard slipped and fell

in the bathroom of his hotel while he was off-duty away from the terminal and

engaged in a highly personal act, not incidental to his employment. While the

hotel Woodard stayed in was only four or five miles from the Lafayette, Indiana

terminal, it was around two hundred miles from Woodard’s home terminal in

Marysville, Ohio. (July 6, 2011 Tr. at 11, 30). Cassens transport had no control

over the hotel bathroom (the accident scene), except that the hotel was part of the

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CLC network of hotels and motels with which Cassens participated. Moreover,

we fail to see how the act of using the restroom in the middle of the night is

anything but a “personal mission” “disconnected with the employment,” similar to

taking a shower or walking to get something to eat. Lewis, 129 Ohio App.3d 131;

Jones, 2011-Ohio-2368; Cline, 2007-Ohio-6782. Viewing the undisputed facts in

light of Lord, Lewis, Jones, and Cline, we conclude that Woodard’s injury did not

“arise out of” his employment with Cassens as a matter of law. Therefore,

Woodard is not entitled to participate in the workers’ compensation system, and

the trial court erred as a matter of law.

{¶23} The dissent raises several concerns with our opinion, all of which are

unpersuasive. Initially, the dissent attempts to criticize our observation that

Woodard was “off-duty” at the time of the accident. As the dissent points out, our

jurisprudence dictates that the claimant-worker’s “off-duty” status is not

dispositive of whether or not an injured worker is entitled to workers’

compensation benefits. Elsass v. Commercial Carriers, Inc., 73 Ohio App.3d 112,

115 (3d Dist.1992). That is not to say, however, that the claimant-worker’s “off-

duty” status is totally irrelevant, as the dissent seems to suggest. Indeed, Fisher

instructs a reviewing court to examine the “time, place, and circumstances” of the

injury to determine whether a sufficient nexus exists between the employment and

the activity causing the injury. 49 Ohio St.3d at 277. Regardless, our analysis

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does not depend upon Woodard’s “off-duty” status since we rely primarily upon

two nearly identical cases, Jones and Lewis, which are premised upon the “arising

out of” prong prescribed by R.C. 4123.01(C). Despite its efforts, the dissent has

failed to distinguish this case from either Jones or Lewis.

{¶24} The dissent attempts to cast doubt upon the Jones and Lewis

decisions—to the extent of characterizing Jones an “outlier in [the Tenth

District’s] jurisprudence.” In its attempt to case doubt upon Jones, the dissent

points to two factually distinguishable cases from the Tenth District, Griffith v.

City of Miamisburg and Lippolt v. Hague, which the dissent argues are

inconsistent with Jones. 2008-Ohio-6611; 10th Dist. No. 08AP-140, 2008-Ohio-

5070.

{¶25} In Griffith, a police officer attending a two-week training course at

the Highway Patrol training academy was injured while playing a basketball game

at the facility with his colleagues on his “free time,” i.e. after the scheduled course

training. 2008-Ohio-6611, at ¶ 2-3, 21. The dissent argues that Woodard’s off-

duty middle-of-the-night bathroom break injury should be eligible for workers’

compensation benefits since the police officer’s “free time” basketball game injury

was eligible. While this argument appears to have merit at first glance, further

inspection of the facts the Court in Griffith relied upon sheds light upon why the

police officer’s basketball game injury was eligible. The Court in Griffith noted

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that the employer strongly encouraged the police officers to remain at the training

facilities even during their “free time” and, in fact, refused to reimburse any costs

they incurred outside of the facility. Id. at ¶ 31. Additionally, concerning the

causal connection between the police officer’s employment and his injury, the

Court noted that the employer could reasonably anticipate (especially in light of its

encouragement to stay on-campus and its refusal to pay for costs incurred off-

campus) that the officer would utilize the physical fitness facilities in light of the

job’s physical fitness requirements. Id. at ¶ 34. Unlike the employer in Griffith,

Cassens allowed its truck drivers to deviate from the approved list of hotels/motels

if the cost was reasonable; and therefore, Cassens exercised less control over the

injury scene than the employer in Griffith. More significantly, as it relates to the

“arising out of” prong in R.C. 4123.01(C), the employer’s benefit from the

basketball game in Griffith was greater than the benefit Cassens derived from

Woodard’s middle-of-the-night bathroom break. The basketball game was on-

campus where all the “technical crash team” members were present, thereby

facilitating team-building and helping the officers maintain their physical fitness,

an employment requirement. The benefit derived by Cassens from Woodard’s

middle-of-the-night bathroom break was minimally, if at all, related to Woodard’s

employment.

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{¶26} The dissent also argues that Woodard’s middle-of-the-night

bathroom break was a basic, “personal need” that Cassens should have reasonable

anticipated (and, therefore, covered under workers’ compensation) like the

officer’s personal need of physical fitness in Griffith. We disagree. Whether or

not the officer’s physical fitness can be classified as a “personal need” is

irrelevant; rather, it is the relationship between the personal need and the

employment that is relevant to determine if the injury “arises out of” the

employment. Indeed, if the Tenth District employed the “personal need” test in

Griffith as the dissent opines, then an employee’s injury while getting food should

be no less compensable; and yet, the Tenth District has concluded just the

opposite. Cline, 2007-Ohio-6782, at ¶ 18-20. We are, therefore, persuaded that the

determinative factor in Griffith, as it should be here as well, was not the personal

nature of the activity giving rise to the injury but the causal connection between

the accident giving rise to the injury and the claimant-employee’s employment.

{¶27} In Lippolt v. Hague, a traveling salesman on an out-of-town business

trip was injured when, after arriving at the hotel where he was staying the night

and exiting his vehicle to check-in, he slipped and fell on ice in the parking lot.

2008-Ohio-5070, ¶ 2-4. The dissent argues, just as the unsuccessful employee-

claimant in Jones argued, that the Tenth District’s decision in Lippolt is

inconsistent with its decision in Jones. Of course, members of the Jones court

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would disagree, as do we. The Court in Jones concluded that, when viewing the

totality of the facts and circumstances, a traveling salesman’s act of exiting his

parked vehicle to check into the hotel where he was spending the night for the

next-day’s business was more related to the employer’s business and more related

to the furtherance of the employer’s affairs than an over-the-road truck driver’s act

of taking a shower in a hotel room. 2011-Ohio-2368, ¶ 25. In reaching this

conclusion, the Court in Jones recognized what is commonly understood in

workers’ compensation jurisprudence—that cases are fact-specific, creating results

which appear on their face disparate but are, in reality, fact-driven. Id.; Fisher, 49

Ohio St.3d at 280 (“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.”).

Such is the trade-off when employing a “flexible and analytically sound

approach,” as the Ohio Supreme Court has instructed, instead of bright-line rules.

{¶28} Cassens’ assignment of error is, therefore, sustained.

{¶29} Having found error prejudicial to the appellant herein in the

particulars assigned and argued, we reverse the judgment of the trial court and

remand for further proceedings consistent with this opinion.

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Judgment Reversed and
Cause Remanded
WILLAMOWSKI, J., concurs.

SHAW, P.J., dissents

{¶30} In reversing the determinations of the Industrial Commission hearing

officers and the trial court, the majority focuses on the fact that Woodard was on

“off-duty” status and away from his home terminal at the time he was injured.

The majority also determined that Woodard’s injury was not compensable because

he sustained it while he was engaged in a “highly personal act,” which was not

incidental to his employment. However, based on the circumstances of this case

including in particular that Cassens specifically instructed Woodard to pick-up the

“backhaul load” knowing that this would require Woodard to stay overnight at a

hotel because the Lafayette terminal would be closed by the time Woodard

arrived, I concur with the determinations of the district hearing officer, the staff

hearing officer and the Common Pleas Court that Woodard sustained his injury in

the course of and arising out of his employment with Cassens. Therefore, I

respectfully dissent from the majority opinion.

{¶31} Contrary to the majority, I do not believe that Woodard’s “off-duty”

status alone prevents him from being entitled to receive workers’ compensation

benefits. In prior cases, courts, including this one, have consistently found the

simple fact that a claimant has finished his daily work at the time he or she

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sustains an injury is not determinative of whether the claimant is eligible to

participate in the Workers’ Compensation Fund.

{¶32} In Griffith v. City of Miamisburg, 10th Dist. No. 08AP-557, 2008-

Ohio-6611, the claimant was a police officer attending a two-week training course

at the Ohio Highway Patrol training academy at the direction of his employer.

The training course consisted of formal, daily training activities from 8:00 a.m. to

5:00 p.m., followed by dinner until 6:00 p.m. The period after dinner from 6:00

p.m. until 8:00 a.m. was considered Griffith’s “own time.” After dinner one

evening, Griffith walked down to the workout facilities on the grounds of the

academy and played in a basketball game. During the game, Griffith stepped on

the jacket of a discarded taser cartridge and twisted his right knee. Griffith

subsequently filed a claim seeking workers’ compensation benefits, which was

denied by the trial court. The trial court cited the fact that Griffith was on his own

free time and had discretion regarding the use of his free time, in addition to the

fact that his participation in the basketball game was purely personal, as reasons to

support its conclusion that Griffith was not in the course of his employment when

he was injured. The Tenth District disagreed with the trial court and found that

“neither the fact that Griffith was on his free time nor that Griffith was engaged in

recreational activity [was] dispositive of whether he was in the course of his

employment.” Id. at ¶ 21. The court went on to find that Griffith’s injury

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occurred in the course of his employment reasoning that Griffith was not engaged

in a personal errand, was required to reside away from home while waiting for the

resumption of the training classes, and specifically found that the “fact that his

injury occurred during his ‘free time’ is not controlling.” Id. at ¶ 23.

{¶33} In Elsass v. Commercial Carriers, Inc., 73 Ohio App.3d 112 (3d.

Dist.1992), the claimant was an over-the-road truck driver who went “off-duty”

upon his arrival at his hotel at 6:30 p.m. in Alexandria, Virginia. Later that

evening, Elsass met up with two other truck drivers at the hotel. The men then

called a taxicab to drive them to Washington D.C. so that they could get some

food and some “action,” meaning a restaurant with topless waitresses or nude

dancing. At approximately three hundred yards from their intended destination,

the taxicab was involved in a traffic accident causing injuries to Elsass. In

determining whether Elsass was entitled to participate in the Workers’

Compensation Fund, this Court found the fact that Elsass was “off-duty” when he

sustained his injuries was not determinative. In particular, we found:

It is uncontested that under Section 395 of the Federal Motor
Carrier Safety Regulations, appellant, having already driven for
some nine and one-half hours that day, was required to spend
the night in the area of his delivery point. Accordingly, the mere
fact that appellant had finished his work for the day and his log
book showed him to be “off duty” is not dispositive on the issue
of whether or not appellant is eligible to participate in the
Workers’ Compensation Fund, as [the employer] seemingly
argues.

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Id. at 114-115. While we ultimately found that Elsass was not entitled to workers’

compensation benefits because the scene of the accident “was too far removed in

time, space and purpose from Elsass’ last employment, whether that be considered

the delivery point in Falls Church, Virginia or the motel in Alexandria, Virginia,”

we concluded that Elsass’ “off-duty status” was not controlling to our

determination. Id. at 115 (emphasis added).

{¶34} In reversing the decisions of the Industrial Commission hearing

officers and the trial court, the majority also heavily relies on the decision in Jones

v. USF Holland, Inc., 10th Dist. No. 10AP-537, 2011-Ohio-2368, which involves

facts similar to the instant case. Although not discussed by the majority, the Tenth

District in Jones found the claimant to be a traveling employee in the course of his

employment, and not on a personal errand, when he injured himself by slipping

and falling on the ceramic tile in a hotel bathroom after taking a shower. Like

Woodard, the claimant in Jones was an over-the-road trucker. Specifically, the

court in Jones stated the following in reaching its conclusion as to whether the “in

the course of employment” prong was satisfied.

[B]ecause Jones was an over-the-road truck driver, he was a
traveling employee. He was staying at a hotel approved and
paid for by USF Holland when he was injured. Traveling was
an essential part of Jones’ job duties and, therefore, benefited
USF Holland. Jones was staying at the hotel to comply with the
federally-mandated rest period for over-the-road truck drivers.
He was in a location encouraged by USF Holland and was
engaged in conduct that was consistent with his employment

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responsibilities—i.e., preparing himself for his next work
assignment. Although at the time he sustained his injuries,
Jones was engaged in an activity associated with personal
hygiene, we find that he was not on a personal errand.
Therefore, contrary to the finding of the trial court, we conclude
that Jones was “in the course of his employment” when he
slipped in the bathroom after showering.

Id. at ¶ 20.

{¶35} Here, the record clearly demonstrates that Woodard was a traveling

employee when he performed his duties as a “car hauler” for Cassens. The nature

of Woodard’s employment with Cassens required him to travel several hundred

miles a day across multiple state lines to transport cars for Cassens. Thus,

traveling was an essential part of Woodard’s job duties. As a traveling employee,

Woodard was in the course of his employment the entire time he was traveling

except when he was on a personal errand.

{¶36} Upon receiving his instructions from Cassens to pick-up the

“backhaul load” in Lafayette, Indiana, Woodard informed Cassens that he was

unable to reach the terminal before it closed that day. Cassens assured Woodard

that his inability to be in Lafayette prior to the terminal closing would not be an

issue because he could simply arrive at the Lafayette terminal the next morning to

load his truck. This required Woodard to stay the night at a hotel in Lafayette,

Indiana. Moreover, even if Woodard was not directed to stay overnight in

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Lafayette, he was not free to return to Ohio once he reached the Lafayette

terminal, because he had to comply with federally-mandated rest period.

{¶37} Like the claimant in Jones, Woodard was staying at a hotel approved

and paid for by his employer when he was injured. At the time the injury

occurred, Woodard was resting overnight at the hotel in between picking up loads

of cars, which was an activity consistent with his contract for hire as a “car hauler”

and logically related to Cassens’ business of transporting automobiles across

multiple state lines. In addition, there was nothing personal in nature regarding

Woodard’s presence at the hotel and his stay there only served to promote

Cassens’ business and was in furtherance of Cassens’ affairs—i.e., to “maximize

the loaded miles” by picking up the “backhaul load.” Even though Woodard

received his injury while using the bathroom at the hotel, this specific action was

merely incidental to his employment which required him to stay the night in

Lafayette, Indiana, and did not constitute such a distinct departure from his

employment to be considered a personal errand.

{¶38} Notwithstanding the Tenth District’s determination in Jones that the

claimant was not on a personal errand and in the course of his employment when

he sustained his injury while slipping and falling his hotel bathroom, the majority

also primarily relies on the rationale set forth by the Tenth District in Jones to

reverse the decisions of the Industrial Commission hearing officers and the trial

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court on the basis that Woodard’s injury did not arise out of his employment with

Cassens. However, upon closer examination of the Jones case, it is apparent that

the Tenth District only summarily applied the Lord factors discussed above in its

decision to deny Jones’ claim to participate in the Workers’ Compensation Fund.

Specifically, the court in Jones concluded that the hotel was not in close proximity

to USF Holland’s terminal, which was located between two to four miles from the

hotel; that USF Holland had no control over the scene of the accident; and that

although USF Holland received some benefit from Jones’ presence at the hotel,

this benefit was outweighed by the fact that “Jones was not engaged in an activity

that was logically related to USF Holland’s business nor incidental to it when he

slipped on the bathroom floor after taking a shower.” Id. at ¶ 23. Without any

further analysis of the totality of facts and circumstances, the Tenth District found

that

[t]here is simply an insufficient causal nexus between the highly
personal act of taking a shower and USF Holland’s business of
transporting cargo by truck. To conclude otherwise would
convert the ‘arising out of employment’ prong into a simple ‘but
for’ test. Therefore, we conclude as a matter of law that Jones’
injury did not ‘arise out of’ his employment as required by R.C.
4123.01(C).

Id.

{¶39} In reaching its conclusion that Jones’ injury did not arise out of his

employment with USF Holland, the Tenth District solely relied on Lewis v. TNT

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Holland Motor Express, 129 Ohio App.3d 131 (9th Dist. No. 1998). The claimant

in Lewis was also an over-the-road trucker, who sustained an injury when he

slipped and fell in the bathroom of his hotel room after taking a shower in

preparation to resume his driving duties in between runs. The Ninth District

limited its analysis to one of the Lord factors, which involved the degree of control

the employer had over the scene of the accident, to conclude that the claimant’s

injury did not arise out of his employment. Specifically, the court in Lewis

summarily concluded “[i]t is difficult to conceive how his employer could have

prevented Lewis from slipping and falling while leaving the bathtub. The control

over the bathtub conditions was solely with the hotel. * * * [F]alling out of a

bathtub after taking a shower is not a risk incident to the duties of a long-distance

truck driver.” Id. at 134.

{¶40} Notably, the “arising out of” analysis in Jones relied on by the

majority appears to be inconsistent with other Tenth District opinions involving

injuries sustained by traveling employees while on an employment-related trip.

{¶41} In Lippolt v. Hague, 10th Dist. No. 08AP-140, 2008-Ohio-5070, the

claimant was a traveling salesman who finished his scheduled visits for the day

between 5:00 p.m. and 5:30 p.m., and decided to drive one and a half to two more

hours to a hotel so that he would be closer to his next scheduled visit in the

morning. Lippolt arrived at the hotel between 7:00 p.m. and 7:30 p.m., parked,

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and exited his vehicle. While walking to the hotel lobby to check in, Lippolt was

injured when he slipped and fell on ice in the hotel parking lot and fractured his

left ankle. The Tenth District found that Lippolt received his injury in the course

of and arising out of his employment. Specifically, with regard to the “arising out

of” prong, the court applied the Lord factors and concluded that the totality of the

circumstances supported finding a causal connection between Lippolt’s injury and

his employment by stating the following:

First, despite [the employer’s] contention that the hotel was over
100 miles and two hours from the last store Lippolt had visited,
the Comfort Inn where Lippolt slipped was undisputedly in close
proximity to the store Lippolt intended to visit early the next
morning. While [the employer] did not have any control over
the scene of the accident and did not require Lippolt to stay at
particular hotels, [the employer] granted Lippolt the authority to
choose where he would stay each night and paid for Lippolt’s
lodging. Most importantly, however, we find that [the employer]
benefited from Lippolt’s presence at the hotel. Lippolt’s
presence at a hotel near the stores he was required to visit during
his weeks on the road provided [the employer] with a refreshed and
well-rested employee to perform services each day, enabled Lippolt
to visit more stores throughout his multistate area on [the
employer’s] behalf, and eliminated the need for [the employer] to
have employees in closer proximity to the stores in Lippolt’s
territory. Unlike an employee whose duties are confined to
specific identifiable locations, Lippolt’s employment
responsibilities encompassed his week-long travel every other
week in furtherance of [the employer’s] business. Thus, upon
review of the totality of the circumstances, we find that a
sufficient causal connection between Lippolt’s injury and his
employment exists and that Lippolt’s injury accordingly arose
out of his employment with [the employer].

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Id. at ¶ 26 (emphasis added). The court in Jones provides a only cursory

explanation to justify why its conclusion denying Jones workers’ compensation

coverage remains consistent with the decision in Lippolt by simply stating that

“[a]n injury that occurs when a traveling salesman walks from his rental car to his

hotel to check in has a greater causal connection to his employment than an injury

that occurs when a traveling truck driver slips and falls in the bathroom of his

hotel room after taking a shower.” Id. at ¶ 25. However, when reviewing the

court’s actual application of the Lord factors in Lippolt there appears to be very

few factual distinctions between the cases to warrant such disparate results.

{¶42} As previously discussed, in Griffith v. City of Miamisburg, 10th Dist.

No. 08AP-557, 2008-Ohio-6611, the Tenth District reversed the determination of

the trial court that the injury of the claimant, a police officer who was injured

while playing in a basketball game during his free time at an academy training

course, did not arise out of his employment. The court in Griffith thoroughly

analyzed the application of the Lord factors to the totality of the circumstances in

reaching its conclusion. Specifically, the court found that the distance from the

claimant’s usual work location was not controlling where, at the time of the injury,

the claimant was away from home for work-related purposes. In fact, the Tenth

District relied on our decision in Elsass as a preferable approach to analyze the

Lord “proximity” factor. In Elsass, we assessed how far removed the scene of the

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injury was in time, space, and purpose from the truck-driver claimant’s last place

of employment, whether that be considered his delivery point or his motel. See

Griffith at ¶ 28 citing Elsass v. Commercial Carriers, Inc., 73 Ohio App.3d at 115.

Based on this analytical approach, the court determined that the academy was

Griffith’s location of last employment for purposes of workers’ compensation

coverage and concluded that the proximity factor was satisfied.

{¶43} When analyzing the degree of control the employer had over the

scene of the accident, the Tenth District in Griffith noted that “direct control over

the physical scene is not an ironclad prerequisite to satisfaction of the second Lord

factor.” Griffith at ¶ 31. The court determined that the employer exercised some

control over Griffith’s presence at the academy because it authorized him to be

there, encouraged him to remain at the academy throughout the course, including

his free time, and refused to reimburse him for expenses were he to leave the

facility for alternative food, lodging or entertainment. The court further concluded

that “even without these considerations, the absence of this one factor cannot be

considered controlling to deny coverage.” Id. (compare this result to the one in

Lewis, supra, where the lack of the Lord control factor alone was deemed

sufficient to deny the truck-driver claimant worker’s compensation coverage).

{¶44} Regarding the final Lord factor analyzing the benefit the employer

received from the injured employee’s presence at the scene of the accident, the

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court in Griffith observed that the claimant was required by his employer to

maintain a certain level of fitness. The court concluded that the employer could

reasonably anticipate that Griffith would make use of the workout facilities on the

academy grounds, that injury from such activity could occur, and that the

employer could not reasonably contemplate that Griffith, during the two-week

training course, “would neglect his personal needs or forfeit workers’

compensation benefits from resultant injuries.” Griffith at ¶ 34 (emphasis added).

{¶45} In applying this approach to the facts in Jones, Lewis, and the instant

case, it is difficult to imagine a need more personal than attending to one’s own

personal hygiene by taking a shower or making use of the bathroom facilities. If

the employer in Griffith could not reasonably contemplate that the claimant would

neglect his personal fitness needs, then surely the employers in Jones, Lewis, and

the case sub judice, also could not reasonably contemplate that the claimants

would neglect their most basic personal hygiene needs in order to avoid forfeiting

worker’s compensation benefits from a potential resulting injury.

{¶46} After reviewing Lippolt, Griffith, and Jones together, the Tenth

District’s decision in Jones appears to be an outlier in that court’s jurisprudence.

Rather than thoroughly analyzing the totality of the circumstances and the Lord

factors, as it did in Lippolt and Griffith, the court in Jones summarily concludes

that there is an insufficient causal connection between Jones’ injury and his

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employment. However, when looking at the specific facts and circumstances of

each case, and the particular way in which the court analyzed the Lord factors in

Lippolt and Griffith, these cases appear to be less distinguishable from Jones than

that court contends. Therefore, I find the analytical framework established in

Lippolt and Griffith for assessing the satisfaction of the “arising out of” prong in

cases involving traveling employees to be more persuasive, more consistent with

our own prior jurisprudence, and hence preferable to the one used in Jones and

endorsed by the majority in its opinion.

{¶47} In applying the principles set forth in Lippolt and Griffith to assess

the totality of the circumstances of the case sub judice, I would find there to be a

sufficient causal connection between Woodard’s injury and his employment with

Cassens.

{¶48} First, using the analysis in Lippolt, I believe the hotel, the site of

Woodard’s injury, was in close proximity to Cassens’ terminal, where Woodard

was instructed to be by Cassens in order to pick up the “backhaul load” the next

morning. The record establishes that the hotel was two or three miles from

Cassens’ Lafayette terminal. Moreover, the proximity factor is also satisfied when

assessing how far removed the scene of the injury was in time, space, and purpose

from Woodard’s last place of employment—whether that be considered Cassens’

Lafayette terminal or the hotel itself. See Griffith at ¶ 28; Elsass at 115.

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{¶49} Next, although Cassens did not have direct control over the physical

scene of the injury, it did exercise some control over Woodard’s presence at the

hotel. Woodard stayed the night in Lafayette at the specific direction of Cassens

in order to pick up the “back haul load” the next morning. Moreover, as

previously discussed, Woodard was required to stay in Lafayette in order to

comply with the Federal Motor Carrier Safety Regulations. Woodard stayed at a

hotel approved and paid for by Cassens—a hotel which was on the CLC list for

which Cassens received a discounted rate and a savings in administrative costs.

Furthermore, as discussed in Griffith, even if these considerations are not enough

to satisfy the “control” factor, the absence of one of the Lord factors is not

controlling to deny coverage.

{¶50} Finally, Cassens received a clear benefit from Woodard’s presence at

the hotel. Woodard’s presence at a hotel near the Lafayette terminal provided

Cassens with a refreshed and well-rested employee ready to haul Cassens’ cargo

for hundreds of miles. Furthermore, instead of returning to Ohio from Missouri

with an empty car carrier, Woodard drove to Lafayette, Indiana, to pick up another

load of cars from the Cassens terminal so that Cassens could “maximize its loaded

miles.” This enabled Cassens to efficiently use its resources and eliminated the

need for another driver to be assigned to the Lafayette terminal in order to carry

the load back to Ohio.

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{¶51} Furthermore, I disagree with the stringent construction of the totality

of the circumstances inquiry utilized in Jones and Lewis, and endorsed by the

majority in its opinion, in which the court summarily reviewed whether there was

a causal connection between the claimant taking a shower and his employment as

an over-the-road trucker. Rather, I believe the court’s analysis in Griffith is a

preferable approach to these cases, in which the court assessed whether the

employer could “reasonably anticipate” that the claimant would engage in the

activity resulting in injury while on an employment-related trip. This inquiry

permits distinguishing daily personal comfort activities, such as taking a shower or

using the bathroom facilities, which are purely ministerial and a function

incidental to personal hygiene, from activities that constitute a distinct departure

from one’s employment, such as going to a nightclub or restaurant to seek

personal entertainment and enjoyment. In addition, this inquiry also provides for a

more flexible and analytically sound approach like the one advocated for by the

Supreme Court of Ohio, instead of attempting to apply a set of superficial “bright

line” rules which can lead to unsound and unfair results. See Fisher, 49 Ohio

St.3d at 280.

{¶52} In reviewing the totality of the facts and circumstances of this case,

and construing the statutory requirements liberally in favor of Woodard, I would

find the evidence demonstrates that there is a sufficient causal connection between

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Woodard’s injury and his employment with Cassens. Therefore, I would conclude

that the trial court did not err in finding that Woodard sustained his injury in the

course of and arising out of his employment with Cassens. Accordingly, I believe

the decisions of two Industrial Commission hearing officers and the trial court

should be affirmed.

/jlr

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