[Cite as Dayton v. Parson, 2023-Ohio-1509.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
CITY OF DAYTON :
:
Appellees : C.A. No. 29353
:
v. : Trial Court Case No. 2020 CV 01754
:
APRIL R. PARSON, ET AL. : (Civil Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on May 5, 2023
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THOMAS M. GREEN & NATALIE J. TACKETT, Attorneys for Appellee
SHAWN M. WOLLAM, Attorney for Appellant
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LEWIS, J.
{¶ 1} April R. Parson appeals from a judgment of the Montgomery County
Common Pleas Court, which granted summary judgment in favor of the City of Dayton on
its administrative appeal of her claim for workers’ compensation benefits. For the following
reasons, we affirm the trial court’s judgment.
I. Facts and Procedural History
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{¶ 2} On the morning of November 23, 2019, Parson was working overtime for the
City of Dayton (“the City”). Parson and two other employees, Mary Blair and Kathy
Peebles, were assigned to strip and wax the floors in the maintenance building.
Throughout the morning, Parson used a large floor stripping machine to strip the floors.
Around 10:30 a.m., Parson, Blair, and Peebles were in the break room together getting
ready to go to lunch. While sitting down, Parson and Peebles got into a verbal argument.
The discussion between the two initially related to Chapter 13 bankruptcy but then
progressed to comments about each other’s family members. According to Parson, she
asked Peebles, “why are you yelling and getting loud. Your daughter is not strigh [sic].”
Peebles then jumped out of her chair and raised her fist as though to attack Parson. In
response, Parson got out of her chair and backed away. As Peebles threatened Parson,
Blair got up and put herself between Peebles and Parson. Parson was telling Peebles to
“get away, stop it, stop it” when she tripped over the floor stripping machine and fell
backwards onto her left wrist. A paramedic was called, and Parson was taken to Miami
Valley Hospital by ambulance.
{¶ 3} On November 25, 2019, Parson filed a workers’ compensation claim for the
injury to her wrist. The claim was initially denied by the Administrator of the Bureau of
Workers’ Compensation. Parson appealed her claim to a District Hearing Officer of the
Industrial Commission of Ohio. On January 18, 2020, the hearing officer disallowed
Parson’s claim. Parson appealed and the matter was heard before a Staff Hearing Officer,
who vacated the District Hearing Officer’s decision and allowed Parson’s claim for a left
wrist fracture. The City subsequently appealed the Staff Hearing Officer’s decision to the
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Industrial Commission, which declined to hear the appeal. Thereafter, on April 17, 2020,
the City filed an administrative appeal in the Montgomery County Common Pleas Court
pursuant to R.C. 4123.512.
{¶ 4} During the proceedings in the trial court, Parson submitted to a deposition
wherein she described the events preceding her injury. After the deposition, the City filed
a motion for summary judgment, to which it attached a copy of the deposition. Exhibits
attached to Parson’s deposition included Parson’s written statement, her first report of
injury to the Bureau of Workers’ Compensation, a medic run sheet, emergency room
records, and historical medical records.
{¶ 5} On December 7, 2021, the trial court granted the City’s motion for summary
judgment. The court found that although the injury occurred during the course of
Parson’s employment, it did not arise out of the employment, because the origin of the
assault was not work-related. Parson timely appealed from the trial court’s decision.
II. Summary Judgment Standard
{¶ 6} “Civ.R. 56(C) provides that summary judgment may be granted when the
moving party demonstrates that (1) there is no genuine issue of material fact, (2) the
moving party is entitled to judgment as a matter of law, and (3) viewing the evidence most
strongly in favor of the nonmoving party, 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.” Taylor v. Meijer, Inc., 182 Ohio App.3d 23, 2009-Ohio-1966,
911 N.E.2d 344, ¶ 11 (2d Dist.), citing State ex rel. Grady v. State Emp. Relations Bd., 78
Ohio St.3d 181, 183, 677 N.E.2d 343 (1997); Harless v. Willis Day Warehousing Co., 54
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Ohio St.2d 64, 375 N.E.2d 46 (1978). The moving party has the burden of demonstrating
that no genuine issue exists as to any material fact. Harless at 66. Once the moving party
has satisfied its burden of identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact, the nonmoving party bears a reciprocal
burden to set forth specific facts showing a genuine issue for trial. Dresher v. Burt, 75
Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). The nonmoving party cannot rely upon the
mere allegations or denials in the pleadings but must set forth specific facts showing that
there is a genuine issue for trial. Civ.R. 56(E). If no genuine issue of material fact exists,
summary judgment must be awarded as a matter of law.
{¶ 7} When reviewing a summary judgment ruling made by a court of common
pleas from an appeal of a decision by the Industrial Commission, we apply the same
standard used to assess any other summary judgment ruling, which is de novo review.
Lafon v. Iron Tiger Logistics, 2d Dist. Clark Nos. 2015-CA-11, 2014-CV-501, 2015-Ohio-
2428, ¶ 8. “De novo review means that this court uses the same standard that the trial
court should have used, and we examine all the Civ.R. 56 evidence, without deference to
the trial court, to determine whether, as a matter of law, no genuine issues exist for trial.”
McAlpine v. McCloud, 2021-Ohio-2430, 175 N.E.3d 948, ¶ 13 (2d Dist.), citing Ward v.
Bond, 2d Dist. Champaign No. 2015-CA-2, 2015-Ohio-4297, ¶ 8.
III. Workers’ Compensation Law
{¶ 8} The legislature established the Ohio workers’ compensation system under
R.C. Chapter 4123. Stolz v. J & B Steel Erectors, Inc., 155 Ohio St.3d 567, 2018-Ohio-
5088, 122 N.E.3d 1228, ¶ 8. Ohio's workers' compensation statutes provide benefits for
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injuries “received in the course of, and arising out of, the injured employee's employment.”
R.C. 4123.01(C). “The in-the-course-of-employment and arising-out-of-employment
elements overlap, but an injured employee must prove the existence of both elements.”
Taylor at ¶ 15, citing Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 124, 689 N.E.2d
917 (1998), fn. 3. The workers’ compensation statutes are to be liberally construed in
favor of the employee. R.C. 4123.95. “Nevertheless, the claimant bears the burden to
prove both prongs of this two-prong formula.” (Citations omitted.) Serraino v. Fauster-
Cameron, Inc., 3d Dist. Defiance No. 4-12-11, 2013-Ohio-329, ¶ 17.
{¶ 9} The “in the course of” element refers to the “time, place, and circumstances
of the injury, and limits compensation to injuries received while the employee was
engaged in a duty required by the employer.” Janicki v. Kforce.com, 167 Ohio App.3d
572, 2006-Ohio-3370, 855 N.E.2d 1282, ¶ 13 (2d Dist.), citing Fisher v. Mayfield, 49 Ohio
St.3d 275, 277, 551 N.E.2d 1271 (1990). However, the employee need not necessarily
be injured in the actual performance of work so long as the injury is sustained while the
employee engages in an “activity that is consistent with the contract for hire and is logically
related or is incidental to the employer’s business.” Masden v. CCI Supply, Inc., 2d Dist.
Montgomery No. 22304, 2008-Ohio-4396, ¶ 8, quoting Sebek v. Cleveland Graphite
Bronze Co., 148 Ohio St. 693, 76 N.E. 892 (1947), paragraph three of the syllabus.
{¶ 10} The “arising out of” element “contemplates a causal connection between
the injury and the employment.” Fisher at 278. A causal connection is determined by
looking at “the totality of the facts and circumstances surrounding the accident, including
the proximity of the scene of the accident to the place of employment, the degree of
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control the employer had over the scene of the accident, and the benefit the employer
received from the injured employee's presence at the scene of the accident.” Taylor at
¶ 14, citing Fisher at 277, citing Lord v. Daugherty, 66 Ohio St.2d 441, 423 N.E.2d 96
(1981), syllabus. This list of factors is not intended to be exhaustive however. Fisher at
279, fn. 2. Because workers' compensation cases are very fact specific, “no one test or
analysis can be said to apply to each and every factual possibility.” Id. at 280. For this
reason, “historically, similar fact patterns have promulgated their own set of rules.” Id.
{¶ 11} One of the recognized fact patterns in Ohio cases involves fights and
assaults that occur at the workplace. “In workers' compensation cases concerning fights
and assaults during work hours at the place of employment, Ohio courts have consistently
focused on two factors: (1) if the origin of the assault was work-related; and (2) if the
claimant was not the instigator.” Foster v. Cleveland Clinic Found., 8th Dist. Cuyahoga
Nos. 84156, 84169, 2004-Ohio-6863, ¶ 13, citing Coleman v. APCOA, Inc., 10th Dist.
Franklin No. 99AP-60, 2000 WL 192560, *2 (Sept. 28, 1999). “The injury is compensable
only if both findings are made.” (Citations omitted.) Id.
{¶ 12} The Workers’ Compensation Act is not meant to impose a duty on an
employer as an absolute insurer of the employee’s safety, but to protect employees
against the risks and hazards incident to the performance of their duties. Carrick v. Riser
Foods, Inc., 115 Ohio App.3d 573, 577, 685 N.E.2d 1261 (8th Dist.1996). As such,
“injuries that result from an employee's misconduct or deviant behavior are not
compensable, as the conduct falls outside the scope of employment.” Id.
IV. Analysis
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{¶ 13} It is undisputed that the argument between Parson and Peebles occurred
at their place of employment and during work hours. The parties, therefore, do not contest
that Parson was injured in the course of her employment. Rather, Parson alleges that the
trial court erred in granting summary judgment for the City by finding, as a matter of law,
that her injury did not arise out of her employment with the City.
{¶ 14} In granting summary judgment, the trial court found that Parson’s injury did
not arise out of her employment with the City. Applying the analysis in Foster, the trial
court found that the origin of the fight between Parson and Peebles was not work-related.
Parson and Peebles were originally discussing Chapter 13 bankruptcy and their children,
nothing related to stripping the floors, working overtime, or any other job-related duties.
December 7, 2021 Decision at p. 7-8. Because the origin of the fight was not work-related,
Parson’s injury did not arise out of her employment with the City, and she was not entitled
to participate in workers’ compensation. Id.
{¶ 15} On appeal, Parson contends that her injury arose as a result of activity that
was “incidental” to the City’s business because she was on a work break talking to other
employees. According to Parson, the personal communications amongst co-workers
“was presumably permitted by the City of Dayton and incidental to Ms. Parson’s
employment” such that her injuries occurred in the course of and arising out of her
employment.
{¶ 16} Parson’s argument suggests that any injury that occurs during the course
of an employee’s approved work break satisfies the element that the injury arose out of
the employment. We do not agree. “It is well established that the mere fact that injury or
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death of an employee occurred while he was engaged in the employment is not sufficient
to entitle a claimant to an award of compensation.” Eggers v. Indus. Comm., 157 Ohio St.
70, 77, 104 N.E.2d 681 (1952). The claimant must also establish a causal connection
between the injury and the employment. Indus. Comm. v. Weigandt, 102 Ohio St. 1, 2,
130 N.E. 38 (1921). It is this causal connection that is necessary for an employee to
recover under workers’ compensation. Fisher, 49 Ohio St.3d at 277-278, 551 N.E.2d
1271; Indus. Comm. v. Bankes, 127 Ohio St. 517, 189 N.E.437 (1934), paragraph two of
the syllabus.
{¶ 17} Parson’s proposition also ignores well-recognized case law that requires an
employee involved in an altercation at the place of employment to establish that the origin
of the fight or assault was work-related and that the employee was not an instigator. In
Foster, workers’ compensation benefits were sought after a woman was shot to death by
her ex-husband at the clinic where she worked. Foster, 8th Dist. Cuyahoga Nos. 84156,
84169, 2004-Ohio-6863, at ¶ 1. On the day of the shooting, the woman was driven to
work by her ex-husband. Id. at ¶ 15. While in the parking lot, the woman and her ex-
husband were confronted by her gun-wielding current husband who fired at their vehicle
and injured the ex-husband. Id. The woman fled into the clinic, and the husband chased
her down and fatally shot her in the lobby. Id. The appellate court affirmed summary
judgment for the employer and the Bureau of Workers’ Compensation, because the
assault was not work-related but rather arose out of a personal dispute between her and
her husband. Id. at ¶ 16, 27.
{¶ 18} The Foster court held that “[i]n workers' compensation cases concerning
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fights and assaults during work hours at the place of employment, Ohio courts have
consistently focused on two factors: (1) if the origin of the assault was work-related; and
(2) if the claimant was not the instigator. * * * The injury is compensable only if both
findings are made.” (Citations omitted.) Id. at ¶ 13. Foster espoused the easily identifiable
rule but relied on the following established case law to arrive at that determination. Indus.
Comm. v. Pora, 100 Ohio St. 218, 125 N.E. 662 (1919) (injuries arising from an argument
between coworkers over possession of a work instrument were compensable);
Delassandro v. Indus. Comm., 110 Ohio St. 506, 144 N.E. 138 (1924) (street cleaner’s
injuries caused by assault from an individual the street cleaner informed was in violation
of local street cleaning ordinance were compensable); Williams v. Indus. Comm., 63 Ohio
App. 66, 25 N.E.2d 313 (6th Dist.1939) (death of employee was not compensable under
Workers’ Compensation Act where the injuries were sustained by fellow employee while
on the job which started in horseplay but ended in earnest); Harvey v. Mayfield, 5th Dist.
Richland No. CA-2743, 1990 WL 125187 (Aug. 20, 1990) (injury of employee involved in
altercation with fellow employee at work place did not occur in the course of and arise out
of employee’s employment where dispute concerned alleged damage to one of the
employee's personal property); Davis v. Indus. Comm., 76 Ohio L. Abs. 474, 148 N.E.2d
100 (10th Dist.1957) (where a plaintiff-decedent, who was engaged in making out
required company reports, became engaged in an argument with another employee
relating to a private affair, and the argument resulted in a fight in which decedent received
fatal injuries, the decedent had voluntarily abandoned his work, and his injuries did not
arise out of his employment so as to entitle him to participate in the Workmen's
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Compensation Fund).
{¶ 19} Other appellate courts have applied the same test in similar circumstances,
including our own Court. See Coleman v. APCOA, Inc., 10th Dist. Franklin No. 99 AP-60,
2000 WL 192560 (Sept. 28, 1999) (“When deciding cases involving assaults and fights
during work hours at the place of employment, Ohio courts have consistently focused on
two factors: (1) whether the origin of the incident was work-related, and (2) whether the
claimant was the instigator. Courts have found an injury compensable when the origin
was found to be work-related and the claimant did not instigate the assault.”); Lowe v.
Cox Paving, Inc., 190 Ohio App.3d 154, 2010-Ohio-3816, 941 N.E.2d 88 (12th Dist.)
(injuries resulting from an assault by coworker while on the job which was based on an
argument unrelated to work and in which claimant was the instigator were not
compensable); Garner v. Bur. of Workers Comp., 2018-Ohio-3398, 118 N.E.3d 479 (2d
Dist.) (employer entitled to summary judgment where claimant’s injuries were not
received in the course of and arising out of his employment when he was assaulted in the
parking lot of the employer’s business).
{¶ 20} There is no dispute that Parson was injured in the course of her
employment. But pursuant to Foster, Parson still had to demonstrate that her injury arose
out of her employment in order for her claim to be compensable, meaning that she had
to show that the origin of the assault was work-related and that she was not the instigator.
Based on the uncontroverted evidence, the origin of the assault was not work-related but
instead was based on personal matters brought to fruition in the employment setting.
According to Parson’s written statement, the argument with Peebles originated with a
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discussion of Chapter 13 bankruptcy. The conversation progressed into an argument
about their respective children in which disparaging comments were made by both Parson
and Peebles. Immediately after Parson made a comment about Peebles’ daughter,
Peebles raised her fist and threatened to attack Parson, who then got out of her seat and
started retreating from Peebles. While moving away from Peebles, who was still yelling
at Parson, Parson tripped and fell over the floor stripping machine. Parson’s testimony
confirmed that the verbal altercation between Peebles and Parsons was what caused her
to back up and fall.
{¶ 21} The ambulance records from Parson’s transport to the hospital explained
that Parson stated she had gotten into an altercation with a coworker and had taken a
few steps back when she tripped and fell over the floor equipment. Parson also told
medical personnel at the emergency room that, prior to her fall, she had gotten into a
disagreement with a coworker and had been attempting to back away when she backed
into a piece of equipment and fell onto her wrist.
{¶ 22} Construing this evidence in a light most favorable to Parson, reasonable
minds could only conclude that Parson’s injury arose out of a personal dispute between
her and Peebles that was entirely unrelated to the performance of any duty imposed by
her employment with the City. There was no evidence that the dispute originated out of,
was related in any way to, or was exacerbated by Parson’s employment with the City.
{¶ 23} We therefore agree with the trial court that there is no genuine issue of
material fact and that reasonable minds can only conclude that Parson’s injuries were not
received “in the course of” and “arising out of” her employment. Consequently, she was
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not entitled to workers' compensation benefits, and the City was entitled to judgment as
a matter of law.
{¶ 24} Parson’s sole assignment of error is overruled.
V. Conclusion
{¶ 25} The trial court’s judgment is affirmed.
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WELBAUM, P.J. and EPLEY, J., concur.