Anthony J. Pascarella v. Abx Air, Inc.

• Decision Date: 10 August 1998
• Docket Number: 98-LW-3666,CA98-01-002
• Parties: ANTHONY J. PASCARELLA, Plaintiff-Appellant, v. ABX AIR, INC., et al., Defendant-Appellee CASE
• Court: Ohio Court of Appeals

ANTHONY J. PASCARELLA, Plaintiff-Appellant, v. ABX AIR, INC., et al., Defendant-Appellee

No. CA98-01-002

98-LW-3666 (12th)

Court of Appeals of Ohio, Twelfth District, Clinton County.

August 10, 1998

Logothetis Pence & Doll, John R. Doll and Beverly A. Meyer, 111 West First Street, Suite 1100, Dayton, Ohio 45402-1156, for plaintiff-appellant

Vorys Sater, Seymour and Pease, LLP, Andrew M. Kaplan and Mary C Henkel, Suite 2100, Atrium Two, 221 East Fourth Street, P.O Box 0236, Cincinnati, Ohio 45201, for defendant-appellee, ABX Air, Inc.

OPINION

WALSH J.

Plaintiff-appellant, Anthony J. Pascarella, appeals a decision of the Clinton County Court of Common Pleas denying his motion for summary judgment and granting summary judgment to defendant-appellee, ABX Air, Inc. ("ABX"). We affirm in part and reverse in part.

On October 24, 1998, Pascarella was a DC-9 captain employed by ABX. On that morning, he piloted an ABX airplane from Wilmington, Ohio to Tampa, Florida. Pascarella arrived in Tampa shortly after 7:00 a.m. on Friday, October 28, but he was not scheduled to return to Wilmington until 10:21 p.m. on Monday, October 31, 1994. Thus, Pascarella had a three-day layover in Tampa.

Shortly after he arrived in Tampa on October 28, Pascarella checked into the hotel assigned to him by ABX, the Radisson Harbor Bay. As part of a union agreement, ABX was required to provide pilots with suitable accommodations during layovers. In Tampa, ABX had contracted with a travel company that, in turn, had contracted with Radisson to provide accommodations for ABX pilots on layover.

Pascarella did not stay at the Radisson that weekend, however. He also did not check out of the hotel. Keeping his hotel room, Pascarella returned to the Tampa airport later the morning of October 28 and flew back to his home in Dayton, Ohio. After spending the weekend in Dayton with his family, Pascarella returned to Tampa on Monday morning, October 31. Pascarella arrived in Tampa around noon and went to the Radisson to reclaim his room. His original room had been assigned to another patron. Pascarella was given a different room with a sliding glass door that led to a balcony. At about 3:00 p.m., Pascarella opened the sliding glass door to step out on the balcony. In doing so, Pascarella received an electric shock to his right hand and arm. As a result of this injury, Pascarella was unable to work for about two weeks.

Pascarella filed for workers' compensation. His claim was allowed, but ABX successfully appealed, resulting in the denial of Pascarella's claim by Ohio's Industrial Commission. Pascarella filed a timely notice of appeal with the Clinton County Court of Common Pleas. In June 1996, ABX moved for summary judgment. Pascarella filed a cross-motion for summary judgment along with a memorandum opposing ABX's motion. In December 1997, the common pleas court granted the motion for summary judgment filed by ABX and denied Pascarella's motion, finding:

The issue before the Court is whether the Plaintiff sustained this injury in the course of his employment ***.

The Court *** finds that under the totality of the circumstances that Plaintiff's injury did not arise from his employment. The Court further finds that it is undisputed that the accident occurred while the Plaintiff was off duty and had no work responsibilities or even an obligation to inform ABX of his whereabouts.

Pascarella appealed.

On appeal before this court, Pascarella presents one assignment of error for review. He complains that the trial court erred in finding that his injury did not "occur in the course of his employment" and that it did not "arise from his employment."

I. Standard of review

In general, appeals of Ohio state agency decisions occur pursuant to Ohio's Administrative Procedure Act ("APA"), R.C. 119.01 et seq. Under the APA, the trial court reviews an agency's decision to determine whether it is supported by "reliable, probative, and substantial evidence and is in accordance with law." R.C. 119.12. If an appeal is taken from that decision, this court reviews the judgment of the court of common pleas to "determine the correctness of the judgment *** that the order of the agency is not supported by any reliable, probative, and substantial evidence." Id.

This standard of review does not apply to every agency action, however. R.C. 119.01 lists the agencies that are subject to its appeals provisions and expressly excludes other agencies and actions from its provisions. Actions of the industrial commission or the bureau of workers' compensation involving adjudication of workers' compensation claims are expressly excluded from the APA. R.C. 119.01(A).^[1] See, also, Whiteside, Ohio Appellate Practice (1998 Ed.) 153, Section 9.18-20 ("R.C. 119.01(A) expressly excludes certain actions of named agencies *** as follows: [a]ctions of the Industrial Commission or the Bureau of Workers' Compensation with respect to adjudication of workers' compensation claims ***").

Decisions of the industrial commission concerning the right of an employee to participate in the state's workers' compensation fund may be appealed to a court of common pleas under R.C. 4123.512 ("Appeal to court of common pleas ***"). Such appeals are governed by the Ohio Rules of Civil Procedure. See R.C. 4123.512(E).^[2] They are subject to de novo review by the common pleas court. Zuljevic v. Midland-Ross (1980), 62 Ohio St.2d 116, 118; State ex rel. Federated Dept. Stores, Inc. v. Brown (1956), 165 Ohio St. 521, paragraph two of the syllabus. If the trial court enters summary judgment in this situation, an appellate court employs a de novo standard of review. See Jennings v. Trimble (Nov. 2, 1995), Jackson App. No. 94CA754, unreported, at 7-8 ("[a]n appeal from a summary judgment entered in this type of [workers' compensation] case is then also conducted under a de novo standard of review").

In applying the de novo standard, we review the trial court's decision independently and without deference to the trial court's determination. Brown v. Scioto Cty. Bd. of Commrs. (1993), 87 Ohio App.3d 704, 711, citing Midwest Specialties, Inc. v. Firestone Co. (1988), 42 Ohio App.3d 6, 8. We also follow the standards set forth in Civ.R. 56(C). Summary judgment is appropriate when: (1) no genuine issue of material fact remains to be litigated; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds construing the evidence in favor of the nonmoving party could reach but one conclusion and that conclusion is adverse to the nonmoving party. Civ.R. 56(C); Bostic v. Connor (1988), 37 Ohio St.3d 144, 146. In a workers' compensation case, an appellate court may uphold the trial court's entry granting summary judgment to the employer if the undisputed evidence does not establish the essential elements of a claim for participation in the fund. Carrick v. Riser Foods, Inc. (1996), 115 Ohio App.3d 573, 578; Silvers v. Elco Steel Co. (Dec. 15, 1997), Fayette App. No. CA9706-016, unreported, at 3.

II. Elements of a compensable injury

In order for an employee's injury to be compensable by the state workers' compensation fund it must be "received in the course of, and arising out of, the injured employee's employment." R.C. 4123.01(C). (Emphasis added.) This test is conjunctive; both prongs of the formula must be satisfied before compensation will be allowed. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277. As a general rule, the Ohio workers' compensation statutes must be "liberally construed in favor of employees." R.C. 4123.95; Fisher at 278. It is "axiomatic" that this rule of construction applies to the phrase "in the course of, and arising out of." Id.

A. "In the course of"

The Ohio Supreme Court recently defined "in the course of employment":

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.

Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 120. (Citations omitted.)

The determination of whether an injury occurs in the course of employment requires courts to look at the "time, place, and circumstances" of the injury. Ruckman, 81 Ohio St.3d at 120, citing Fisher v. Mayfield, 49 Ohio St.3d at 277. "[I]f 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 (1933), 126 Ohio St. 279.

In the workers' compensation context, a traveling employee is one whose "work entails travel away from the employer's premises." 2 Larson, Workers' Compensation Law (1997) 5-286, Section 25.00. Other jurisdictions have found pilots, drivers, and train engineers to be traveling employees. See American Airlines v. LeFevers (Fla.Dist.Ct.App.1996), 674 So.2d 940, and Continental Airlines v. Industrial Comm. (Colo.App.1985), 709 P.2d 953 (airline flight attendants); Thomas v. Grigorescu, 582 F.Supp. 514 (S.D.N.Y. 1984), aff'd, (2d.Cir.1984), 751 F.2d 371 (Amtrak employees); Ford v. BiState Dev. Agency (Mo.App.1984), 677 S.W.2d 899 (bus drivers); Hobgood v. Anchor Motor Freight (N.C.App.1984), 316 S.E.2d 86; and Suburban Ready Mix Concrete v. Zion (Ind.App.1983), 443 N.E.2d 1241 (truck drivers).

The "traveling employee" doctrine sets forth the general rule for...