Workers' Compensation "Zone of Employment" by Michael J. Spisak I. In the Course of and Arising out of To be covered by the Workers Compensation Fund, Plaintiff s injury must have occurred in the course of and arising out of his employment. Both elements must be present in order to qualify for worker s compensation benefits. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, 551 N.E.2d 1271. The in the course of element limits compensable injuries to those sustained by an employee while performing a required duty in the employer s service. It refers to the time, place, and circumstances of the injury. To be entitled to workers compensation, an employee need not necessarily be injured in the actual performance of work for his employer. It is sufficient that the employee s injury is sustained while engaging in activity that is reasonably incident to the employee s duties. Hill v. General Heat Treating, Inc. (8th Dist., 1988), 47 Ohio App.3d 72, 547 N.E.2d 405. And the injury may be compensable, under certain circumstances, even though it occurred away from the employer s premises. Id. The arising out of prong refers to whether there is a sufficient causal connection between an employee s injury and his employment to justify the right to participate in the Worker s Compensation Fund[.] Lord v. Daugherty (1981), 66 Ohio St.2d 441.
II. The Coming and Going Rule Generally, an employee with a fixed place of employment, who is injured away from the employer s premises, but traveling to and from the premises, is not entitled to receive workers compensation benefits because the requisite causal connection between the injury and the employment does not exist. This is known as the coming and going rule. MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 572 N.E.2d 661, syllabus; Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 303, 401 N.E.2d 448. See also Hill, supra, at 405 (recognizing that certain off-site injuries occurring while traveling to and from the injured worker s place of employment during paid lunch breaks are not compensable under the coming and going rule); Mitchell v. Cambridge Home Health Care (8 th Dist. 2008), 2008 Ohio 4558, 2008 Ohio App. LEXIS 3859, 14 ( If an employee leaves a fixed situs without any duties to carry out[,] then the coming and going rule applies. ). However, there are exceptions to this general rule. The Ohio Supreme Court articulated these exceptions in the MTD Products case: an injury is compensable, although it occurred while traveling to or from the employer s premises if: (1) the injury occurs in the zone of employment ; (2) if it was a result of a special hazard of the employment; or (3) there is a causal connection based upon the totality of the circumstances. MTD Products, supra, at 68-70. 2
III. The Zone of Employment Exception The coming and going rule applies until the fixed situs employee reaches the situs of employment. Marlow v. Goodyear Tire & Rubber Co. (1967), 10 Ohio St. 2d 18. Generally, the situs of employment is limited to the employer s premises, but under certain circumstances, the situs may extend beyond this area and fall within the employment environment (i.e., the zone of employment ). Littlefield v. Pillsbury Co. (1983), 6 Ohio St. 3d 389. The theory behind the zone of employment exception is that an injury should be compensable if the employment environment exposed the employee to hazards that are peculiar to the employment (and these hazards caused his injury). But where an off-site injury occurs due to hazards which are likely to exist anywhere and bear no relationship to the employment, the exception is not available. The Ohio Supreme Court has described the zone of employment concept as being that area in proximity to the employer s premises presenting hazards attributable to the employment. Indus. Comm. v. Barber (1927), 117 Ohio St. 373. The zone of employment rule has been applied to injuries that occurred before, during, and after an employee s scheduled shift. Remer v. Conrad, 2003 Ohio 4096, 153 Ohio App.3d 507. In Weiss v. Univ. Hosp. of Cleveland (8th Dist 2000), 137 Ohio App.3d 425, the plaintiff tripped and fell as she stepped on to a curb while on her way to work. The plaintiff had parked her car in a lot across the street from her workplace, and as she crossed the road via a crosswalk, she tripped on a curb that was unusually high due to construction by the City of Cleveland. Although the crosswalk provided a direct route to the entrance of the plaintiff s workplace, the court held that she was not in the zone of employment because her employer did not require her to park in this particular lot, her 3
employer was not responsible for its operation or management, and the hazard that actually caused her injury was in an area controlled by the City. The use of the sidewalks, driveways, and parking spaces in this case were subject to rules and regulations established by Galaxy, and Galaxy was responsible for their maintenance and upkeep, including the removal of ice and snow the specific hazard that actually caused Plaintiff to fall and become injured. Plaintiff s off-site injury did not occur due to the conditions of his employment but, rather, occurred due to hazards likely to exist anywhere. In Watkins v. Metrohealth Sys. (October 31, 2002), Cuyahoga App. No. 80567, 2002-Ohio-5961, the plaintiff was attempting to park her vehicle in a garage owned by her employer when her foot slipped off the brake and onto the accelerator, causing her car to ram another parked car. She was injured and filed a workers compensation claim. The court found that she was not injured within the zone of employment because, [a]lthough [her employer] owned the lot where the accident occurred, [the plaintiff] was not required to use the parking lot. She did so at her discretion, admitting that she chose to drive her car and park at the lot as a matter of convenience, not necessity. She had several options in parking available to her, including parking on a public street. See also Johnston v. Case W. Res. Univ. (8th Dist. 2001), 145 Ohio App.3d 77 (holding that the plaintiff s wife was not injured within the zone of employment because she was not required to drive to work or park in the lot to which she was walking when a car struck and killed her). 4
IV. The Special Hazard Exception An injury sustained from a special hazard incident to employment is compensable. The requirements of a special hazard are: (1) but for the employment, the employee would not have been at the location where the injury occurred, and (2) the risk is distinctive in nature or quantitatively greater than the risk common to the public. Weiss v. Univ. Hosp. of Cleveland (8th Dist 2000), 137 Ohio App.3d 432. In Brown v. B.P. America, Inc. (1993), 85 Ohio App. 3d 194, the plaintiff left her employer s office to go to a bank office located off the lobby shared by the building in which her office resided. Her employer apparently permitted its employees to go to the bank during regular working hours on pay days. After leaving the elevator and going towards the bank in the common lobby, the plaintiff fell and was injured. The court held that the plaintiff was not injured due to a special hazard incident to her employment because the risk of falling in the lobby was not created by her employer and plaintiff took the same risk as any other member of the public who chose to enter the lobby. The court further held that because she was injured in a public place outside the employer s premises while on a personal errand, the claim should not be allowed. This is exactly the situation presented by the facts of this case. 5
V. Recent Cases Miller v. Bureau of Workers' Compensation (March 31, 2010), 2010-Ohio-1347. Courts continue to toil with the issue of when an injured worker should be entitled to workers' compensation benefits for injuries occurring off the employer's premises and arguably occurring off duty. The Ninth District Court of Appeals recently considered this question in Miller v. Bureau of Workers' Compensation (March 31, 2010), 2010-Ohio- 1347, and it found that the employee, who was injured on a coffee break at a restaurant away from his employer's premises, was nevertheless entitled to participate in the Workers' Compensation Fund. In Miller, the injured employee worked as a "housing rehab specialist" for the City of Akron, and his duties included traveling to and inspecting individuals' homes who were seeking housing assistance. The employee estimated that he spent approximately forty percent of his time conducting these inspections. However, he began every workday at his employer's office and performed most of his duties there. The employer permitted him to take two fifteen-minute breaks each day. On the day of his injury, the employee left his office to perform a home inspection. En route, he decided to take one of his fifteen-minute breaks and stopped at a restaurant for a cup of coffee. After taking his coffee break, the employee left the restaurant to return to his car and slipped on the icy parking lot and injured his back. The Industrial Commission denied the claim because the employee's injuries occurred during a break off the employer's premises. The trial court agreed and granted the employer's motion for summary judgment. The employee appealed to the Ninth District 6
and argued that his injuries were, in fact, compensable because he was still on duty at the time of the accident - even though he was off-site and on a coffee break. The Ninth District considered whether one of these exceptions were available to the injured employee. The court agreed that the coming-and-going rule may bar recovery for a similar injury occurring during an unpaid lunch break, but it held that the rule might not bar recovery for one occurring during a paid rest break, which was the situation in this case. The court explained. However, the same is not true of coffee breaks and other breaks taken for the employee's personal comfort, even when the employee is injured while off the employer's work premises.... Unlike the unpaid lunch break, it is generally accepted that although an employee is not technically performing his work duties during a break, taking a break for personal comfort is deemed to be incidental to the employment and therefore in the course of and arising out of the employment.... Thus, in examining whether an off-premises break arises out of the employment, the issue cannot be resolved solely through the mere determination of the fixed situs status of the employment and automatic application of the coming and going rule. The courts must inquire into the specific circumstances of the injury to determine work-connectedness. The Court suggested that when considering the "specific circumstances" of the injury and determining "work-connectedness," relevant factors might include: "the time of the break, whether the break is a right fixed by the employment contract, whether it is a paid break, whether there are any restrictions as to where the employee can take the break, and whether the employee's activity during the break constituted a substantial personal deviation." 7
The Ninth District ultimately found that, under the circumstances of this case, the employee was entitled to receive workers' compensation benefits. Among the reasons supporting this conclusion were that the employee was required to leave his office building to perform his work duties and was permitted to take paid breaks at a time and location of his choosing. The court reasoned that the "risk of his injury was a risk inherently related to the nature of his employment and he would not have sustained the injury had he not been required to leave the office in order to satisfy his work duties." It explained that the employer had control over the time and place where he could take his break, but the employer "elected not to place restrictions upon [him.]" Therefore, according to the court, the employee was at a place where he could reasonably be expected to be at the time of his injury, and his injury resulted from permissible employment activities. He had not deviated from his employment to engage in some activity of a purely personal nature. Moreover, the court found that the employer benefited from the rest break because it was for the employee's personal comfort and renewed and re-energized him for work. Bottom line: Employers should be careful when requiring employees to perform off-site work duties or permitting employees to take unregulated breaks. It is advisable to exercise control over the manner and means in which employees perform off-site work and the circumstance under which they are permitted to take breaks. 8
VI. Parking Lot Cases Burkey v. Elyria Maintenance, 2005-Ohio-992 (Ohio App. Lorain County). Claimant was murdered in a parking lot of her employer. She had already clocked out. The murder was never solved. The employer controlled the parking lot (a fence was around it and it was padlocked, and employees were required to park there). In addition, the claimant had to return a company van to that lot. Under the totality of the circumstances, the court found factual disputes which needed to be resolved, so it sent the case back to the trial court. The Appellate Court emphasized that there was no evidence to indicate the murder was "personal" in nature, and thus not compensable. The court found that the fact she clocked out was not relevant to the question of whether or not the claim was compensable. The Court's analysis in this case is helpful. When determining whether an injury occurred in the course of employment, this Court considers the time, place, and circumstances of the injury. As such, an injury is received in the course of employment, "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."... Additionally, an injury arises out of employment when there exists a sufficient causal connection between the injury and the employment... In determining whether this causal connection exists, we examine the totality of the circumstances and facts surrounding the injury. The risks that led to these injuries can be placed into three categories: "risks distinctly 9
associated with the employment, risks personal to the claimant, and 'neutral' risks -- i.e. risks having no particular employment or personal character."... While injuries stemming from risks associated with employment are compensable, injuries resulting from a personal risk are "universally noncompensable."... The Ohio Supreme Court has set forth three factors that should be considered in determining whether this causal connection exists between the injury and the employment: 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.... Therefore, in making a determination, a reviewing court "must examine the separate and distinct facts of each case."... " In this case, applying this test, the Court held that "... a question of fact remains as to whether Wendy's dependents are entitled to death benefits". Foster v. Cleveland Clinic Foundation, 2004-Ohio-6863 (Ohio App. Cuyahoga County) Claimant was murdered by her husband in the lobby of her workplace. The Court of Appeals held that this claim was not compensable because the murder arose out of personal marital problems and is independent of the employment. A. Shafer v. Tri-Arch 14, Inc., 2005-Ohio-2845 (Ohio App. Cuyahoga County) Shafer was a McDonald's employee who was required to park in the parking lot of the funeral home across the street. She was struck by a car while crossing the public street. The claimant obtained summary judgment. The appellate court affirmed, 10
holding that Tri-Arch required the employee to park in that particular parking lot. She was therefore within the zone of employment, even though jaywalking across the street. Thus, she was entitled to participate in the workers' compensation fund, and the trial court's judgment was affirmed. Castaneda v. AE Outfitters Retail Co., 2004-Ohio-5554 (Ohio App. Lorain County) Employee was struck by a car in the parking lot. The employer had no obligation to maintain the lot (it was a retail store) and did not assign spots in the lot. The Court of Appeals held, in this particular case, where the employer had no control or authority over the parking and did not limit the way employees could enter or where they parked, the parking lot is not within the zone of employment and the coming and going rule applies. Therefore, the claim is denied. Jesse v. The May Department Store Co., 2004-Ohio-5513 (Ohio App. Lake County) Same factual scenario as in Castaneda, but in this particular case the employer instructed its employees to refrain from parking in the first four rows out of consideration for customers. In this case, the Court of Appeals for Lake County indicated that the injury is compensable because the employee was in the zone of employment. Catalano v. City of Lorain, 2005-Ohio-3298 (Ohio App. Lorain County) A building maintenance supervisor was walking across the parking lot when a police dog jumped out of a police vehicle and bit him. His workers' compensation claim was approved. He sued the city. It was held that because he had a compensable workers' compensation claim, the employer had immunity and he could not sue the city. Claimant argued dual capacity in this case. Since he is a citizen of the city, as well as 11
an employee, he felt that in his role as a citizen he could maintain a cause of action against the police officer who unleashed the vicious dog. The court disagreed, finding that "Appellant misunderstands the dual capacity doctrine. The relationship at issue is not between the police officer in this case and Appellant, but rather, the City of Lorain in its capacity as Appellant's employer and as the police officer's employer. The police officer and 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.... Therefore, in making a determination, a reviewing court "must examine the separate and distinct facts of each case."... " Duvall v. J & J Refuse 2005-Ohio-223 (Ohio App. Stark County). Truck driver was hurrying down the stairs to get some paperwork. He was in a hurry because he wanted to attend the company Christmas party later in the day. His left knee became painful and started to buckle and twist. He filed for a sprain of the left knee and that claim was denied. There is evidence in the file that he did have a two-week history of knee pain. The court held "upon review of the record, it is clear that appellant had preexisting left knee problems and that such problems caused his knee to buckle and twist on the day in question." The court disallowed the claim, ruling that Duvall's actions in hurrying down the stairs clearly do not amount to a condition or hazard of his employment, but rather constitute a condition or hazard caused by appellant himself. The court found that the employee's injury occurred in the course of his employment (i.e. onsite, during working hours), but did not arise of out employment because the injury was idiopathic. The court defined idiopathic: "an employee's pre- 12
existing physical weakness or disease which contributes to the accident." The court further found no condition or hazard of employment which created or increased the risk of injury, and therefore disallowed the claim. 13
VII. Course And Scope Of Employment Collins v. W S. Life Ins. Co., Appeal No. C-070189, Court of Appeals of Ohio, First Appellate District, Hamilton County, 2008 Ohio 2054; 2008 Ohio App. LEXIS 4421, May 2, 2008. Court found that employee, who fell on a public sidewalk in front of the employer's building while on her way to her office from the employer's parking garage, was injured while in the zone of employment, as she had arrived at her "place of employment" upon parking her car in the employer's parking lot. The employer's lack of control over the site of the injury was not dispositive under the facts because employee had to cross the public thoroughfare in order to reach the office building. Lippolt V. William R. Hague, Inc., No. 08AP-140, Court of Appeals of Ohio, Tenth Appellate District, Franklin County, 2008 Ohio 5070; 2008 Ohio App. LEXIS 4284, September 30, 2008. An employee who had driven to the area where he planned to visit one of the employer's stores the following day, slipped on ice and broke his ankle in the hotel parking lot while walking toward the hotel lobby to check in. The Court held that the trial court properly determined the employee's injury occurred in the course of and arising out of his employment. Callahan v. P&G, Case Number 1-08-19, Court of Appeals of Ohio, Third Appellate District, Allen County, 2008 Ohio 4954; 2008 Ohio App. LEXIS 4135, September 29, 2008. An employee, who had traveled to New Orleans to attend a work conference, was injured while standing outside a club with other fellow employees following a meeting with a vendor's representative at another club. The Court held that the trial court properly granted summary judgment to the employer because the evidence established the employee's injury did not occur within the scope 14
of her employment. 15
Mitchell v. Cambridge Home Health Care, Inc./PRI, C. A. No. 24163, Court of Appeals of Ohio, Ninth Appellate District, Summit County, 2008 Ohio 4558; 2008 Ohio App. LEXIS 3859, September 10, 2008. Home health aide was going home when she tripped and fell on a floor mat while exiting an elevator in the patient's apartment building. Court affirmed the trial court's granting of summary judgment for the employer, finding that the "coming and going" rule applied to the employee and that neither the "totality of circumstances" nor the "zone of employment" exceptions applied. Masden v. CCI Supply, Inc., Appellate Case No. 22304, Court of Appeals of Ohio, Second Appellate District, Montgomery County, 2008 Ohio 4396; 2008 Ohio App. LEXIS 3703, August 29, 2008. A claimant who was sent to work at an out-ofstate construction site was injured when he tried to disarm a knife-wielding lodger at his motel. The Court found that the claimant's injuries were sustained in the course of and arising out of his employment. Keating v. Classic East, Inc., CASE NO. 2008-L-001, Court of Appeals of Ohio, Eleventh Appellate District, Lake County, 2008 Ohio 3740; 2008 Ohio App. LEXIS 3169, July 25, 2008. Court affirmed trial court's summary judgment for the employer, finding that the decedent's injuries could not have occurred in the course of his employment and that there was insufficient evidence the injuries arose out of his employment. The Court found that the decedent, who worked at a car dealership and was killed on the employer's premises when he lost control of a motorcycle, was engaged in actions involving either "horseplay" which he instigated, or misconduct, both of which fell outside the scope of his employment. 16
Millsap v. Lucas County, Court of Appeals No. L-07-1381, Court of Appeals of Ohio, Sixth Appellate District, Lucas County, 2008 Ohio 2083, 2008 Ohio App. LEXIS 1789, May 2, 2008. Claimant who worked as corrections officer at the county jail, slipped and fell on an icy metal grate that was part of the sidewalk in front of the jail as she was coming into work. The Court held that claimant's entitlement to workers' compensation benefits was precluded under the "coming and going" rule and neither the "zone of employment" nor the "special hazard" exceptions applied. 17