[Cite as Jones v. Multicare Health & Educational Servs., Inc., 2013-Ohio-701.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 98899
ERIC JONES
PLAINTIFF-APPELLANT
vs.
MULTICARE HEALTH & EDUCATIONAL SERVICES,
INC., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
REVERSED AND REMANDED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-766598
BEFORE: Boyle, P.J., Celebrezze, J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: February 28, 2013
ATTORNEYS FOR APPELLANT
Dustin S. Lewis
Kenneth C. Podor
The Podor Law Firm
33565 Solon Road
Solon, Ohio 44139
ATTORNEYS FOR APPELLEES
For Multicare Health & Educational Services, Inc.
Michael J. Reidy
Scott W. Gedeon
Meredith L. Ullman
Ross, Brittain & Schonberg
6480 Rockside Woods Boulevard, S.
Suite 350
Cleveland, Ohio 44131
For Administrator, Bureau of Workers’ Compensation
Mike DeWine
Ohio Attorney General
Virginia Egan Fisher
Assistant Attorney General
Workers’ Compensation
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:
{¶1} Plaintiff-appellant, Eric Jones, appeals the trial court’s judgment granting
summary judgment in favor of defendants-appellees, Multicare Health and Educational
Services, Inc. (“Multicare”), and the Administrator of the Bureau of Workers’
Compensation (the “BWC”), on his claim seeking compensation under the Workers’
Compensation Act. The trial court found that the injuries Jones sustained in a
motor-vehicle accident were not sustained in the course of and arising out of his
employment at Multicare. Finding merit to the appeal, we reverse and remand for
further proceedings.
Procedural History and Facts
{¶2} In September 2010, Multicare, a home health agency, hired Jones as its
director of nursing — a salaried position that required Jones to work from 8:30 a.m. to
5:00 p.m. with an unpaid, half-hour lunch break.
{¶3} On January 5, 2011, Jones reported to Multicare’s office and then traveled
to a client’s home located on Lakeshore Boulevard. Jones picked up a prescription
order from the client and drove to a nearby Rite Aid pharmacy on East 185th Street to fill
the prescription.
{¶4} Upon learning that the prescription would take 45 minutes to fill, Jones
decided to take his lunch break, heading downtown. According to Jones’s deposition,
he had lunch at either Slyman’s or Landmark restaurant in Cleveland. Following his
lunch, Jones attempted to return to Rite Aid but was rear-ended by another vehicle on the
exit ramp of I-90 at the East 185th Street exit. Jones sustained injuries and
subsequently filed a claim for workers’ compensation.
{¶5} Jones’s claim for workers’ compensation benefits was allowed by a district
hearing officer at the Industrial Commission, which was subsequently affirmed by a staff
hearing officer. Thereafter, the Industrial Commission refused to hear further appeals
from the district hearing officer’s decision.
{¶6} In October 2011, Multicare filed an appeal with the court of common
pleas. Jones subsequently filed his complaint, seeking a judgment against Multicare
and the BWC, with the right to participate and receive benefits for the injuries he
sustained in the motor-vehicle accident.
{¶7} Multicare subsequently moved for summary judgment, which Jones
opposed. The trial court ultimately granted Multicare’s motion, finding that Jones was
not entitled to workers’ compensation benefits.
{¶8} Jones appeals, raising a single assignment of error:
The lower court erred in granting appellees’ motion for summary
judgment.
Standard of Review
{¶9} We review an appeal from summary judgment under a de novo standard.
Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly,
we afford no deference to the trial court’s decision and independently review the record
to determine whether summary judgment is appropriate. N.E. Ohio Apt. Assn. v.
Cuyahoga Cty. Bd. of Cty. Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th
Dist.1997).
{¶10} Civ.R. 56(C) provides that before summary judgment may be granted, a
court must determine that
(1) no genuine issue as to any material fact remains to be litigated, (2) the
moving party is entitled to judgment as a matter of law, and (3) it appears
from the evidence that reasonable minds can come to but one conclusion,
and viewing the evidence most strongly in favor of the nonmoving party,
that conclusion is adverse to the nonmoving party.
State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d
654 (1996).
{¶11} The moving party carries an initial burden of setting forth specific facts that
demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio
St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden,
summary judgment is not appropriate, but if the movant does meet this burden, summary
judgment will be appropriate only if the nonmovant fails to establish the existence of a
genuine issue of material fact. Id. at 293.
Governing Law
{¶12} To recover workers’ compensation benefits, Ohio law requires that the
worker demonstrate that an injury occurred both “in the course of” employment and that
it “arises out of” that employment. Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d
117, 121, 689 N.E.2d 917 (1998), citing Fisher v. Mayfield, 49 Ohio St.3d 275, 277, 551
N.E.2d 1271 (1990); see also R.C. 4123.01(C). Failure to satisfy both prongs precludes
recovery under the Workers’ Compensation Act. Fisher at 277. But in applying the
statutory requirements, we remain mindful that the workers’ compensation statutes
should be liberally construed in favor of employees. R.C. 4123.95.
{¶13} In this case, Multicare moved for summary judgment on the basis that
Jones cannot satisfy either prong because his injuries arose as a result of “an excursion of
his own choosing that bore no relationship to his job duties that day.” In its motion,
Multicare asked the trial court to take judicial notice that the Rite Aid pharmacy is 1.5
miles from the patient’s residence. Multicare further asked the trial court to take
judicial notice that the distance from Rite Aid to Slyman’s restaurant is 9.85 miles, and
Rite Aid to Landmark restaurant is 8.2 miles. According to Multicare, it is not required
to bear the liability for Jones’s voluntary “frolic” during the work day.
“Coming-and-Going” Rule
{¶14} Multicare cited several cases in support of its argument that “lunchtime
excursions or injuries sustained while traveling to and from lunch are not compensable.”
We note that the cases relied on by Multicare primarily hinged on the
“coming-and-going” rule. “The coming-and-going rule is a tool used to determine
whether an injury suffered by an employee in a traffic accident occurs ‘in the course of’
and ‘arises out of’ the employment relationship so as to constitute a compensable injury.”
Ruckman at 119. “As a general rule, an employee with a fixed place of employment,
who is injured while traveling to or from his place of employment, is not entitled to
participate in the Workers’ Compensation Fund because the requisite causal connection
between the injury and the employment does not exist.” MTD Prods., Inc. v. Robatin,
61 Ohio St.3d 66, 68, 572 N.E.2d 661 (1991).
{¶15} Although Multicare asserted that the “coming-and-going” rule is not
applicable in its reply brief, the majority of the cases that it relied on in support of its
motion were based on this very principle with respect to fixed-situs employees traveling
to lunch. Notably, Multicare did not argue or establish that Jones had a “fixed place of
employment.” Even on appeal, Multicare relies primarily on two cases, namely, Hill v.
Gen. Metal Heat Treating, Inc., 47 Ohio App.3d 72, 547 N.E.2d 405 (8th Dist.1988),
and Smith v. Akron, 9th Dist. No. 22101, 2004-Ohio-4974, that it argues supports the
trial court’s granting of summary judgment. These two cases, however, involved an
employee with a fixed place of employment. This is a critical distinction from the
instant case. Again, Multicare never established, let alone argued, that Jones was a
fixed-situs employee. We therefore find that the cases applying the
“coming-and-going” rule to fixed-situs employees are inapplicable to this case.
{¶16} Thus, we now turn to the critical issue: whether Multicare established as a
matter of law that Jones’s injuries did not occur in the course of and arise out of his
employment.
“In the Course of” Employment
{¶17} Turning to the first prong, it is well settled that the mere fact that an injury
occurred during employment is not sufficient to establish entitlement to benefits.
Rosado v. Cuyahoga Metro. Hous. Auth., Inc., 8th Dist. No. 87922, 2007-Ohio-1164,
citing Eggers v. Indus. Comm., 157 Ohio St. 70, 104 N.E.2d 681 (1952). The Ohio
Supreme Court summarized this prong 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 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.
(Citations omitted.) Ruckman, 81 Ohio St.3d 117, 120, 689 N.E.2d 917.
{¶18} “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.” Woodard v. Cassens Transport Co., 3d Dist. No. 14-11-22, 2012-Ohio-4015, ¶
17, quoting Fisher, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271. “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, 185
N.E. 50 (1933), paragraph two of the syllabus.
{¶19} We find that reasonable minds could reach differing conclusions with
respect to this prong. The record reveals that Jones’s job duties required him to drive to
a pharmacy to pick up the client’s prescription. The issue in this case, therefore, hinges
on whether Jones departed from his job duties at the time of the accident on a personal
errand or frolic. While Multicare contends that Jones had engaged in a frolic by driving
downtown for lunch — departing from his job duties — Jones maintains that he had
already resumed work at the time of the accident because he was driving to the pharmacy
to pick up the client’s prescription.
{¶20} Contrary to Multicare’s assertion, we cannot say that Jones was off on a
frolic as a matter of law. Notably, although Multicare emphasizes the distance that
Jones drove downtown to have lunch, i.e., at least eight miles away, the record reveals
that the accident occurred at the East 185th Street exit off of I-90 — closer to the Rite
Aid pharmacy than downtown. We further note that there is no dispute that Jones was
entitled to a lunch break. Nor is there any evidence that Multicare restricted when or
where Jones could take his lunch. Thus, given that the timing, place, and circumstances
of the motor- vehicle accident allow for two equally compelling conclusions as to
whether Jones was in the course of his employment at the time of the accident, we find
that the trial court erred in deciding this issue as a matter of law.
“Arising Out” of the Employment
{¶21} The “arising out of” the employment prong employs a totality of the
circumstances approach to determinate whether a causal connection existed between the
employment and the injury. Fisher, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271.
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 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, 423 N.E.2d 96 (1981), syllabus. The Lord
factors, however, are not dispositive. Indeed, due to the fact-specific nature of these
cases, “no one test or analysis can be said to apply to each and every factual possibility.”
Fisher at 280.
{¶22} In deciding this prong, the crucial issue is whether a sufficient causal
connection exists between Jones’s injury from the motor-vehicle accident and his
employment. We find that reasonable minds could reach differing conclusions with
respect to this prong.
{¶23} According to Multicare, a strict application of the Lord factors precludes
Jones from participating in the Workers’ Compensation Fund. Multicare asserted in its
motion for summary judgment that (1) the proximity of the scene bore absolutely no
relationship to Jones’s job duties, (2) that Multicare had no control over the scene of the
accident, and (3) that Multicare received no benefit from Jones being in that area at the
time of the accident. The gravamen of Multicare’s argument is that Jones’s decision to
drive so far for lunch renders the causal connection between his injury and employment
at the time of the accident too remote to entitle him to benefits. Although we may agree
that a juror may find that Jones’s decision to drive downtown to be fatal to his claim for
workers’ compensation benefits, we cannot say that reasonable minds would all reach the
same conclusion.
{¶24} Indeed, construing the facts in a manner most favorable to Jones, we find
that a reasonable juror could conclude that there is a sufficient causal connection
between Jones’s injury and his employment to entitle him to benefits. First, the
accident occurred closer to the pharmacy than to downtown, and Jones was heading to
the pharmacy as part of his job duties. Secondly, the second prong of the Lord test
considers whether the employer had some degree of control over the scene of the
accident, which includes how the claimant came to be there. See Chilton v. Conrad, 2d
Dist. No. 04CA0050, 2005-Ohio-3873. Jones would not have been in that area if it
were not for the fact that he had to pick up his client’s prescription. Finally, the last
element contemplates the benefit that Multicare received from Jones being in that area at
the time of the accident. Multicare receives a benefit from its employees being
refreshed and rejuvenated from having a lunch. It further received a benefit from Jones
picking up the client’s prescription — a necessary part of his job.
{¶25} We further find that our decision is supported by the Ninth District’s
decision in Miller v. Admr., Bur. Workers’ Comp., 9th Dist. No. 24805, 2010-Ohio-1347.
In Miller, the court held that the claimant was entitled to workers’ compensation
benefits for the injuries that he sustained during a paid break at a restaurant en route to
his next inspection site. While we do not find that Miller is completely analogous to the
instant case, we find that it is persuasive authority in support of Jones’s argument that
summary judgment should not have been granted. Although there are some factual
distinctions between Miller and this case, i.e., that Miller was on a paid break at the time
that he was injured, we note that the holding in Miller granted judgment in favor of the
employee. Here, Jones relies on Miller in support of his claim that reasonable minds
could reach different conclusions with respect to this case. We agree.
{¶26} In analyzing the “arising out of” prong, the Miller court emphasized that
the employer did not prohibit its employees from taking breaks off the premises and that
it was reasonable for Miller to take the break off the premises given the amount of travel
inherent to his job duties. This is analogous to the instant case. Again, there is no
evidence in the record that Multicare restricted when or where Jones could take his lunch
break. Further, it was reasonable for Jones to take his lunch while out picking up a
prescription at a pharmacy. Given that Multicare reasonably expected its employees to
take a lunch, we also cannot say that Multicare is insulated from all liability simply
because Jones’s lunch was not paid. As discussed above, this case does not involve an
employee with a fixed location of employment taking his lunch off the premises.
{¶27} Accordingly, having found that reasonable minds could differ in
determining whether a sufficient causal connection exists between Jones’s injury and
employment, we find that the trial court erred in deciding the issue as a matter of law.
See Saldana v. Erickson Landscaping & Constr., 11th Dist. No. 2003-G-2546,
2005-Ohio-142 (recognizing that reasonable minds can differ on the issue of whether
employee’s injury arose out of his employment).
{¶28} Jones’s sole assignment of error is sustained.
{¶29} Judgment reversed and case remanded to the lower court for further
proceedings consistent with this opinion.
It is ordered that appellant recover from appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment
into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR