Friebel v. Visiting Nurse Ass'n of Mid Ohio
| Decision Date | 19 April 2013 |
| Docket Number | No. 2012–CA–56.,2012–CA–56. |
| Citation | 991 N.E.2d 279 |
| Parties | Tamara L. FRIEBEL, Plaintiff–Appellant v. VISITING NURSE ASSOCIATION OF MID OHIO, et al., Defendant–Appellee. |
| Court | Ohio Court of Appeals |
OPINION TEXT STARTS HERE
Paul Flowers, Frank Gallucci, Cleveland, OH, for plaintiff-appellant.
Melissa A. Black, John C. Barno, Jamison S. Speidel, Columbus, OH, for defendant-appellee.
{¶ 1} Appellant Tamara Friebel appeals from the June 22, 2012 Judgment Entry issued by the Richland County Court of Common Pleas.
{¶ 2} As a home health nurse, appellant provided in-home health care services to the clients of appellee, Visiting Nurse Association of Mid–Ohio. Her job duties included visiting homes of geriatric patients to assess their physical condition, reviewing medications, and tending to medical needs. Each morning, appellant received her schedule identifying the patients she needed to visit. She typically visited six to eight patients per day during the week and sometimes visited patients on the weekends, depending on the needs of the patient. Appellant testified her typical day consisted of going from patient home to patient home and she only had occasion to stop at the office when she needed to pick up a form or medical supplies, check her mailbox, or attend meetings. Each nurse saw patients within a specified territory, though adjustments could be made when necessary.
{¶ 3} Appellant traveled in her personal vehicle to the patient's homes. During the week, appellant subtracted mileage and time for travel to and from home. On the weekends, appellee paid appellant for travel time and mileage from the time she left her home to the time she returned to her home.
{¶ 4} On Saturday, January 22, 2011, appellant's first patient was a woman she had visited approximately eight times previously. The patient lived on Park Avenue, West, in Ontario, Ohio. Appellant confirmed she was being paid for both travel time and mileage during this trip from the time she left her home to the time she returned to her home. Appellant's children and two family friends were in the car with appellant because appellant intended to drop them off at the Richland Mall and then continue on to see her patient at the patient's home in Ontario. Appellant testified she planned to take her normal route to the patient's home, Lexington–Springmill Road to Park Avenue West. On her way, she was going to take the second entrance road to the mall off of Lexington–Springmill Road, drop off her passengers, and proceed on the same access road to return southbound on Lexington–Springmill Road. Appellant stated after she dropped off her passengers at the mall, she would have taken Lexington–Springmill Road to Park Avenue West, the street on which her patient's home was located.
{¶ 5} Appellant left her home in Shelby, Ohio and traveled south on Lexington–Springmill Road. Prior to arriving at the mall entrance, appellant's car was hit from behind while stopped at a traffic light at Fourth Street and Lexington–Springmill Road. Appellant testified she had not yet departed from the route to her patient's house when the vehicle was struck, as she had not yet turned into the mall entrance.
{¶ 6} Appellant sought the right to participate in the workers' compensation system for a cervical sprain she sustained in the motor vehicle accident. Though appellant states that appellee does not dispute appellant sustained an injury, the record in this case indicates appellee disputes that an injury occurred.
{¶ 7} On February 11, 2011, appellant's workers' compensation claim was allowed for a sprain of the neck. After an employer appeal, a hearing officer issued an order on March 22, 2011, finding that appellant was a fixed situs employee and did not begin her substantial employment until she arrived at the patient's house and thus was not in the course and scope of her employment at the time of the accident. A staff hearing officer vacated the district hearing officer's order on May 12, 2011, and the claim was allowed for a cervical sprain.
{¶ 8} Appellant filed a complaint in Richland County Common Pleas Court on August 12, 2011, after appellee commenced the proceedings on July 25, 2011. Appellee filed an answer denying the allegations. The Bureau of Workers' Compensation filed an answer stating appellant should be allowed to participate in the fund for allowed conditions only. The trial court granted summary judgment to appellee on June 22, 2012, finding, as a matter of law, appellant's injury did not arise out of her employment and was not received in the course of her employment because she was on the personal errand of transporting passengers to the mall.
{¶ 9} Appellant filed an appeal of the trial court's June 22, 2012 judgment entry granting summary judgment to appellee and raises the following assignment of error on appeal:
{¶ 10} “AS A MATTER OF LAW, THE TRIAL COURT ERRED BY OVERTURNING THE SOUND DISCRETION OF THE INDUSTRIAL COMMISSION OF OHIO AND GRANTING SUMMARY JUDGMENT IN FAVOR OF DEFENDANT–APPELLEE, VISITING NURSE ASSOCIATION OF MID OHIO.”
{¶ 11} Civ. R. 56 states in pertinent part:
{¶ 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. Am. States Ins. Co., 67 Ohio St.2d 427, 424 N.E.2d 311 (1981). The court may not resolve any ambiguities in the evidence presented. Inland Refuse Transfer Co. v. Browning–Ferris Inds. Of Ohio, Inc., 15 Ohio St.3d 321, 474 N.E.2d 271 (1984). A fact is material if it affects the outcome of the case under the applicable substantive law. Russell v. Interim Personnel, Inc., 135 Ohio App.3d 301, 733 N.E.2d 1186 (1999).
{¶ 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., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987). This means we review the matter de novo. Doe v. Shaffer, 90 Ohio St.3d 388, 738 N.E.2d 1243 (2000).
{¶ 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. Dresher v. Burt, 75 Ohio St.3d 280, 662 N.E.2d 264 (1996). Once the moving party meets its initial burden, the burden shifts to the nonmoving 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 materials showing a genuine dispute over material facts. Henkle v. Henkle, 75 Ohio App.3d 732, 600 N.E.2d 791 (1991).
{¶ 15} Pursuant to R.C. 4123.54(A), every employee who is injured or contracts an occupational disease in the course of employment is entitled to receive compensation for loss sustained a result of the disease or injury as provided for in the Ohio Revised Code. R.C. 4123.01(C) provides that in order for an employee's injury to be compensable under the workers' compensation fund, the injury must be “received in the course of, and arising out of, the injured employee's employment.” The claimant must show the injury was received both in the course of and arising out of the injured employee's employment. Fisher v. Mayfield, 49 Ohio St.3d 275, 551 N.E.2d 1271 (1990). However, this rule is to be liberally construed in favor of awarding benefits. Id. at 278, 551 N.E.2d 1271.
{¶ 16} Appellee argues the trial court properly found as a matter of law appellant's injury was not received in the course of her employment with appellee. We disagree. The requirement that an injury be in the course of employment involves the time, place, and circumstances of the injury. Fisher, 49 Ohio St.3d 275, 551 N.E.2d 1271. An injured employee does not actually have to be performing his or her duties for the injury to be in the course of employment. Stair v. Mid–Ohio Home Health Ltd., 5th Dist. No. 2010–CA–0114, 2011-Ohio-2351, 2011 WL 1944267. An 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. at ¶ 32.
{¶ 17} Appellee states appellant was on a personal errand and thus not in the course of employment at the time of her accident because her conduct at the time of the accident involved transporting passengers to the mall. Appellee further argues appellant's act of transporting passengers to the mall took her conduct outside the course of her employment.
{¶ 18} In Houston v. Liberty Mutual Fire Insurance Company, an employee working as a merchandiser...
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Friebel v. Visiting Nurse Ass'n of Mid-Ohio
...travel to her patient's home, and that when she was injured, she had not yet diverted from 142 Ohio St.3d 427 that path. 2013-Ohio-1646, 991 N.E.2d 279, ¶ 21, 5th Dist. The appellate court also found that Friebel would not have been at the place where the accident occurred if she had not be......