[Cite as Stair v. Mid Ohio Home Health Ltd., 2011-Ohio-2351.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
MARY STAIR : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellant : Hon. Julie A. Edwards, J.
:
-vs- :
: Case No. 2010-CA-0114
MID OHIO HOME HEALTH LTD :
:
Defendant-Appellee : OPINION
And
ADMINISTRATOR, BUREAU OF
WORKERS’ COMPENSATION
Defendant-Appellee
CHARACTER OF PROCEEDING: Administrative appeal from the Richland
County Court of Common Pleas, Case No.
09CV1543
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: May 13, 2011
APPEARANCES:
For Plaintiff-Appellant For Defendant-Appellee
JESSICA M. BACON ERIC L. WEEDEN
CHRISTOPHER J. STEFANCIK 2770 East Main Street
6555 Dea Memorial Parkway Suite 21
Boston Heights, OH 44236 Columbus, OH 43209
KEVIN REIS
Assistant Attorney General
Workers’ Compensation Section
150 East Gay Street, 22nd Floor
Columbus, OH 43215
[Cite as Stair v. Mid Ohio Home Health Ltd., 2011-Ohio-2351.]
Gwin, P.J.
{¶1} Plaintiff-appellant Mary Stair appeals a summary judgment of the Court of
Common Pleas of Richland County, Ohio, entered in favor of defendants-appellees Mid
Ohio Home Health, Ltd. and the Administrator of the Bureau of Workers’ Compensation.
Appellant assigns a single error to the trial court:
{¶2} “I. THE TRIAL COURT ERRED IN GRANTING DEFENDANT-
APPELLANT’S MOTION FOR SUMMARY JUDGMENT.”
{¶3} The issue in this case is whether appellant is eligible to participate in the
Workers’ Compensation Fund after falling in the parking lot in front of her employer’s
office. Throughout the administrative process and in the trial court, the decision was that
she was not eligible. We disagree for the reasons that follow.
{¶4} Appellant customarily began her workday around 6:00 a.m., traveling
directly from her home to the home of her first client. Each day she performed
household chores at approximately five clients’ homes. Appellant was paid on an hourly
basis, including travel time between the clients, and did not have a regularly scheduled
lunch break. Her workday ended at approximately 5:00 p.m., and on most days she
returned directly home. She was not reimbursed for mileage.
{¶5} On certain days, appellant was required to go to Mid Ohio’s office to drop
off her paper work, signed by the clients to show she had performed the work.
Sometimes, she would drop off the paperwork on a Friday, but other times, the office
wanted the paperwork on a Monday. Mid Ohio’s workers were required to pick up their
paychecks at the office if they lived in Mansfield. Generally, appellant would pick up her
paycheck in the morning so as to not conflict with the office personnel’s lunch hour. In
Richland County, Case No. 2010-CA-0114 3
her deposition appellant deposed sometimes the office personnel would even call and
ask her when she was coming to get her check.
{¶6} Mid Ohio leased an office in a strip mall style building with parking in front
of it for Mid Ohio and patrons of the other businesses in the strip. In her deposition
appellant testified she was required to park in the front of the building and to use the
front door. The rear parking area and back door were used by the persons who worked
in the office.
{¶7} Mid Ohio gave its employees their assignments either by phone or when
they came to the office to drop off their paper work or to pick up their checks. Appellant
testified they often called her to the office so she could get a printout showing the
client’s location and information about the client’s needs.
{¶8} December 28th, 2008 was a Friday and payday. Appellant drove to the
office and parked in the parking lot in front of the strip mall. On the day in question, she
did not have any paperwork to drop off. Appellant picked up her paycheck and was
given an additional assignment to work another client into her schedule for the day.
While leaving the office, she stepped on a patch of ice which, she testified, she had not
seen or stepped on going into the building. She fell, sliding on her right shoulder into
the wheel of the car. Although appellant attempted to continue working, it became
apparent she was injured, and she ceased work and went to the doctor. Eventually she
was diagnosed with a torn rotator cuff on her right side.
{¶9} The district hearing officer denied appellant’s request for injury allowance,
finding her injury was not work-related because her employer did not own or control the
parking lot in which she was injured.
Richland County, Case No. 2010-CA-0114 4
Summary Judgment
{¶10} Civ. R. 56 states in pertinent part:
{¶11} “Summary judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits, transcripts of
evidence, and written stipulations of fact, if any, timely filed in the action, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. No evidence or stipulation may be considered except as
stated in this rule. A summary judgment shall not be rendered unless it appears from
the evidence or stipulation, and only from the evidence or stipulation, that reasonable
minds can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being entitled to
have the evidence or stipulation construed most strongly in the party's favor. A
summary judgment, interlocutory in character, may be rendered on the issue of liability
alone although there is a genuine issue as to the amount of damages.”
{¶12} A trial court should not enter a summary judgment if it appears a material
fact is genuinely disputed, nor if, construing the allegations most favorably towards the
non-moving party, reasonable minds could draw different conclusions from the
undisputed facts, Hounshell v. American States Insurance Company (1981), 67 Ohio
St. 2d 427, 424 N.E.2d 311. The court may not resolve ambiguities in the evidence
presented, Inland Refuse Transfer Company v. Browning-Ferris Industries of Ohio, Inc.
(1984), 15 Ohio St. 3d 321, 474 N.E.2d 271. A fact is material if it affects the outcome
of the case under the applicable substantive law, Russell v. Interim Personnel, Inc.
(1999), 135 Ohio App. 3d 301, 733 N.E.2d 1186.
Richland County, Case No. 2010-CA-0114 5
{¶13} When reviewing a trial court’s decision to grant summary judgment, an
appellate court applies the same standard used by the trial court, Smiddy v. The
Wedding Party, Inc. (1987), 30 Ohio St. 3d 35, 506 N.E.2d 212. This means we review
the matter de novo, Doe v. Shaffer, 90 Ohio St.3d 388, 2000-Ohio-186, 738 N.E.2d
1243.
{¶14} The party moving for summary judgment bears the initial burden of
informing the trial court of the basis of the motion and identifying the portions of the
record which demonstrate the absence of a genuine issue of fact on a material element
of the non-moving party’s claim, Drescher v. Burt (1996), 75 Ohio St. 3d 280, 662
N.E.2d 264. Once the moving party meets its initial burden, the burden shifts to the
non-moving party to set forth specific facts demonstrating a genuine issue of material
fact does exist, Id. The non-moving party may not rest upon the allegations and denials
in the pleadings, but instead must submit some evidentiary material showing a genuine
dispute over material facts, Henkle v. Henkle (1991), 75 Ohio App. 3d 732, 600 N.E.2d
791.
Workers’ Compensation Law
{¶15} It is well settled that the Ohio Workers’ Compensation Act does not create
a general insurance fund for compensating all injuries to workers. Lohnes v. Young
(1963), 175 Ohio St. 291, 194 N.E. 2d 428. A compensable injury is one that has a
sufficiently strong connection to the injured person’s employment. Bralley v. Daugherty
(1980), 61 Ohio St. 2d 302, 401 N.E. 2d 448. The claimant must show the injury was
received both in the course of and arising out of the injured employee’s employment.
Richland County, Case No. 2010-CA-0114 6
Fisher v. Mayfield (1990), 49 Ohio St. 3d 275, 551 N.E. 2d 1271. However, this rule is to
be liberally construed in favor of awarding benefits. Id. at 278.
{¶16} Appellees’ joint motion for summary judgment stated the crux of their
argument was the applicability of the coming and going rule. In Ruckman v. Cubby
Drilling, Inc., 81 Ohio St. 3d 117, 1998-Ohio-455, 689 N.E. 2d 917, the Supreme Court
of Ohio explained the application of the coming and going rule. The court stated “in
determining whether an employee is fixed-situs employee and therefore within the
coming-and-going rule, the focus is on whether the employee commences his or her
substantial employment duties only after arriving at a specific and identifiable workplace
designated by his employer. That focus remains the same even though the employee
may be re-assigned to a different workplace monthly, weekly, or even daily. Despite
periodic relocation of job sites, each particular job site may constitute a fixed place of
employment. A fixed-situs employee is entitled to Workers’ Compensation benefits for
injuries occurring while coming and going from or to his place of employment where the
travel serves a function of the employer’s business and creates a risk that is distinctive
in nature from quantitatively greater than risks common to the public.” Syllabus by the
court, paragraphs 1 and 2, citations deleted.
{¶17} In Cubby, supra, the Supreme Court explained the rationale for the
coming-and-going rule is that Workers’ Compensation applies only to hazards
encountered by the employee while in the discharge of the duties of employment, and
does not cover risks and hazards, such as travel to and from the place of actual
employment over the streets and highways, if those risks and hazards are similarly
encountered by the public generally.
Richland County, Case No. 2010-CA-0114 7
{¶18} The facts in Cubby are instructive. Two oil riggers were injured in a motor
vehicle accident while on route to a drilling site. The Supreme Court noted although the
riggers were regularly required to drive to various sites, they had no duties to perform
until they reached the drilling site, and their duties ended upon leaving the site. The
Supreme Court determined even though they travelled a great deal, the riggers had a
specific work site and the coming-and-going rule applied. The court noted that normally,
an employee’s commute to a fixed worksite has no meaningful relationship to his
contract and serves no purpose of the employer’s business.
{¶19} The Supreme Court also cautioned that although payment for travel is
commonly considered to be a key factor in determining whether an employee was in the
course of his or her employment while travelling to a job site, caution must be used in
applying this as the major factor in a “course of employment” inquiry.
{¶20} The Supreme Court explained the totality of the circumstances test to
determine whether there exists sufficient causal connection between the injury and the
employment for a fixed-situs employee who is subject to the coming and going rule.
First, courts must analyze various factors: (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. Id., citations deleted. This test is applied to
establish an exception the coming and going rule and does not apply to non-fixed situs
employees.
Richland County, Case No. 2010-CA-0114 8
The Motion for Summary Judgment
{¶21} The trial court’s entry granting summary judgment does not state the basis
of its decision other than to cite the appellees’ joint memoranda in support of the motion.
The memorandum in support of the motion alleges that the “coming and going” rule
applies here to bar appellant’s recovery. The motion alleged appellant’s injury did not
occur in the course of and arising out of her employment because “walking in a parking
lot was not a condition of her employment”. Motion for summary judgment at 9. The
appellees alleged appellant’s injury did not occur in the course of her employment
because she was not working for a client, but was on what appellees characterized as a
personal errand. The appellees alleged the ice did not constitute a special hazard
incidental to her employment other than those to which the general public was exposed.
The motion also asserted Mid Ohio received no benefit from appellant’s presence in the
parking lot and she was not in proximity to any client while there.
{¶22} Appellant responded to the motion for summary judgment by asserting the
“coming and going” rule did not apply because she was not a “fixed-situs” employee and
was in the course and scope of her employment when she was injured. Appellant
argues she was at the office in the course of her employment because the employer
required her to pick up her check and, often, new assignments. She argued it is
irrelevant whether Mid Ohio controlled the parking lot because she was in the zone of
employment when she was injured.
{¶23} Appellees’ joint reply stated even if appellant is not considered a fixed-
situs employee, because she had interrupted her work she must show a causal
connection between her injury and her employment. Even if she is not a fixed-situs
Richland County, Case No. 2010-CA-0114 9
employee, appellees argue, appellant’s employment only requires her to drive to and
from various clients’ homes, and appellant is not assigned to work in the business
office. Appellees assert appellant must show proximity to the place of employment, i.e.
a client’s home.
“Fixed-Situs”
{¶24} Applying the Cubby test to the case at bar, we find appellant was not a
fixed-situs employee. Although her work began when she arrived at the first client’s
home, she was paid hourly including for all travel between clients, which could
encompass quite a long distance on any given day. Her day did not end until she left
the last client’s home. Mid Ohio did not even schedule a lunch break for appellant
during her work day. On the day of her injury, appellant was not finished with the day’s
work because she still had several clients to visit after she picked up her check and
received an additional assignment. She was being paid for her time when she was
injured.
{¶25} We find the evidence shows appellant was required to go to Mid Ohio’s
business office on a regular basis during her work day to submit her paperwork, receive
information about work assignments, and to pick up her paycheck. Mid Ohio did not
control the parking lot directly, but its lease provided the owner would maintain the
driveway and parking lot in a manner consistent with the lessees’ reasonable use.
Presumably the rent Mid Ohio paid was partly for use of the parking lot and
maintenance services. This is distinguishable from Cubby, where the accident occurred
on a public road and was caused by a negligent driver, neither of which was under the
Richland County, Case No. 2010-CA-0114 10
employer’s control. Mid Ohio specified what area appellant should park in and which
door she should use.
{¶26} Appellees argue appellant had interrupted her work to run a personal
errand in going to the office, but the evidence in the record can only be construed that
Mid Ohio required appellant to regularly travel to the business office at certain hours
and on certain days, which were necessarily between client assignments, and she was
injured while performing that aspect of her employment.
{¶27} We conclude as a matter of law appellant was not a “fixed-situs” employee
and the coming and going rule does not apply. Because she is not a fixed-situs
employee, the totality of the circumstances exception set out in Cubby does not apply.
Fisher
{¶28} . In order to prevail on her claim, appellant must produce evidence on both
prongs of the test articulated in Fisher, supra, that is, she must show her injury arose
both in the course of and arising out of the scope of her employment.
{¶29} The first issue is whether appellant’s injury was one “arising out of” her
employment. This refers to a causal connection between the injury and the employment.
Fisher, supra, at 277-278, 551 N.E.2d 1271. “Whether there is a sufficient ‘causal
connection’ between an employee's injury and his employment ... depends on the
totality of the facts and circumstances surrounding the accident.” Lord v. Daugherty
(1981), 66 Ohio St.2d 441, 423 N.E.2d 96, syllabus by the court. “As such, no one test
or analysis can be said to apply to each and every factual possibility.” Id.
{¶30} In Hirschle v. Mabe, Montgomery App. Nos. 22954 and 22975, the Court
of Appeals for the Second District reviewed a case where an employee was walking
Richland County, Case No. 2010-CA-0114 11
back to her car parked in her employer’s parking lot. She had picked up her paycheck
but was not working that day. She was allowed to pick up her paycheck, but was not
required to do so. The court of appeals found even if the employee is not in the parking
lot in the performance of her specific job, causation “remains the analysis even though
the activity that actually caused her injury was walking to her car. An injury that occurs
in an employer's parking lot while walking to a vehicle, though incidental to employment,
still occurs in the course of employment. See Griffin v. Hydra-Matic Division, General
Motors Corp. (1988), 39 Ohio St.3d 79, 529 N.E.2d 436 (injury suffered after slip and fall
in parking lot after work is compensable); Marlow v. Goodyear Tire & Rubber Co.
(1967), 10 Ohio St.2d 18, 225 N.E.2d 241 (injury suffered after auto accident in parking
garage while leaving work is compensable).” Hirschle at paragraph 22.
{¶31} We find appellant has established the causation prong of Fisher.
{¶32} The second prong of the Fisher test is whether appellant received her
injury in the course of her employment. Courts have considered this issue with regard
to the time, place, and circumstances of the accident that caused the injury. Fisher,
supra. However, an injured employee need not be in the actual performance of his
duties in order for his injury to be in the course of employment. Sebek v. Cleveland
Graphite Bronze Company (1947), 148 Ohio St. 693, 76 N.E. 2d 892, overruled in part
on other issues in Johnson v. Industrial Commission, 164 Ohio St. 693, 76 N.E.2d 892.
The employee must be engaged in a pursuit or undertaking consistent with the contract
of hire which is related in some logical manner, or is incidental to, his or her
employment. Id.
Richland County, Case No. 2010-CA-0114 12
{¶33} The Hirschle court found a fundamental aspect of the employment
relationship is the payment and receipt of wages. Hirschle at paragraph 14, citations
deleted. The court concluded Hirchle’s injury, incurred when she was present solely to
pick up her check, nontheless arose out of a performance of the employer’s duty and
her exercise of a right under her employment agreement.
{¶34} Here, appellant was injured while engaged in specific acts Mid Ohio
required her to do regularly as part of her employment. She was in the parking lot solely
at Mid Ohio’s behest. Mid Ohio’s policy indicates it believed it received a benefit in not
being required to mail the paychecks.
{¶35} We find the trial court erred as a matter of law in determining appellant
was not entitled to participate in the Workers’ Compensation Fund for her injuries.
{¶36} The assignment of error is sustained.
{¶37} For the foregoing reasons, the judgment of the Court of Common Pleas of
Richland County, Ohio, is reversed, and the cause is remanded to the court for further
proceedings in accord with law and consistent with this opinion.
By Gwin, P.J.,
Wise, J., and
Edwards, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS
WSG:clw 0420
[Cite as Stair v. Mid Ohio Home Health Ltd., 2011-Ohio-2351.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
MARY STAIR :
:
Plaintiff-Appellant :
:
:
-vs- : JUDGMENT ENTRY
:
MID OHIO HOME HEALTH LTD :
:
:
Defendant-Appellee : CASE NO. 2010-CA-0114
And
ADMINISTRATOR, BUREAU OF
WORKERS’ COMPENSATION
Defendant-Appellee
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of
the Court of Common Pleas of Richland County, Ohio, is reversed, and the cause is
remanded to the court for further proceedings in accord with law and consistent with this
opinion. Costs to be split between the appellees.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. JULIE A. EDWARDS
[Cite as Stair v. Mid Ohio Home Health Ltd., 2011-Ohio-2351.]