Harmon v. Schnurmacher, 92-P-0040

• Citation: 616 N.E.2d 591,84 Ohio App.3d 207
• Decision Date: 14 December 1992
• Docket Number: No. 92-P-0040,92-P-0040
• Parties: HARMON, Appellee, v. SCHNURMACHER, Appellant; Mihm, Admr., et al., Appellees. *
• Court: Ohio Court of Appeals

Page 207

84 Ohio App.3d 207

616 N.E.2d 591

HARMON, Appellee, v. SCHNURMACHER, Appellant;

Mihm, Admr., et al., Appellees. ^*

No. 92-P-0040.

Court of Appeals of Ohio, Eleventh District, Portage County.

Decided Dec. 14, 1992.

Janet McCamley, Cleveland, for appellee.

Irwin J. Dinn, Cleveland, for appellant.

Lee Fisher, Atty. Gen., and James P. Mancino, Asst. Atty. Gen., Cleveland, for appellees Patrick G. Mihm, Adm'r, Bureau of Workers' Compensation and Indus. Com'n of Ohio.

FORD, Presiding Judge.

This appeal arises as a result of a final administrative decision of the Ohio Industrial Commission, which found that appellee, Savannah Harmon, was injured in the course and scope of her employment with appellant, Marcelle Schnurmacher. Pursuant to R.C. 4123.519, appellant appealed to the Portage County Common Pleas Court. After both parties submitted cross-motions for summary judgment, the court determined that Harmon was an employee of appellant, not an independent contractor, and was entitled to participate in the Workers' Compensation fund. Appellant timely appeals from the trial court's opinion and order. Pursuant to App.R. 9(D), the parties filed an agreed statement in lieu of a transcript. The agreed facts are as follows:

Harmon began her employment as a nurse's aide in 1959 after a six-week training course at St. Alexsis Hospital. In the spring of 1986, she was engaged by appellant and her late husband to assist in his care at their apartment. When Mr. Schnurmacher died in 1987, Harmon continued to perform, as needed, housekeeping and nursing services for appellant.

As appellant's mental and physical condition deteriorated, Harmon was hired by appellant's brother and attorney-in-fact, Lawrence Korach, to care for appellant while hospitalized. She was paid $7 per hour by Korach from appellant's account.

After being diagnosed with Alzheimer's disease and admitted to the Anna Maria Nursing Home in Aurora, Ohio, appellant could no longer communicate her needs and wishes to Harmon. Thus, Korach hired Harmon to provide nursing care for appellant at the nursing home. Though at all times appellant's brother retained the power to direct Harmon and set her hours of service and the nature of her services, he relied upon Harmon to determine the exact nature of attendance because he was not an expert in the details of nursing care.

Upon hiring Harmon, Korach asked her to provide the same quality care that she provided for appellant's husband, and trusted implicitly that she would do so. His main concern was that his sister receive better care than the nursing home provided. Per Korach's request, Harmon worked at least eight hours each day with a break for lunch.

Harmon called Korach each day on the telephone to report appellant's status. If Harmon needed to take a day off, Korach had given her the authority to suggest a replacement because, again, he was not knowledgeable in the realm of nursing care selection. Any replacements were paid directly by Korach by check drawn on his sister's account. In addition, Korach provided Harmon with a week's vacation pay and with additional payments at Christmas time.

It was in the course of these services, on September 30, 1988, while pushing appellant in a wheelchair, that Harmon injured her back. At the time of this injury, appellant was not a participating employer in the Ohio workers' compensation insurance fund. Harmon subsequently filed a claim for direct benefits under the Ohio workers' compensation statutes, claiming to be an employee of appellant.

The only issue before the trial court was whether under the facts surrounding the performance of services by Harmon for appellant, Harmon was to be regarded as an employee entitled to participate in the Ohio workers' compensation insurance fund, or an independent contractor who is not entitled to so participate.

Appellant assigns the following as error:

"The trial court erred in finding Plaintiff-Appellee, Savannah Harmon, as a matter of law, to be the employee of Defendant-Appellant, Marcelle Schnurmacher, rather than an independent contractor."

Civ.R. 56 authorizes summary judgment and establishes that it may be granted only when, after construing the evidence most strongly in favor of the nonmoving party, reasonable minds could come to but one conclusion, and that conclusion is adverse to the nonmoving party. "Whether someone is an employee or an independent contractor is ordinarily an issue to be decided by the trier of fact." Bostic v. Connor (1988), 37 Ohio St.3d 144, 145-146, 524 N.E.2d 881, 883. However, " * * * where the evidence is not in conflict or the facts are admitted, the question of whether a person is an employee or an independent contractor is a matter of law to be decided by the court." Id. at 146, 524 N.E.2d at 884, citing Schikling v. Post (1927), 115 Ohio St. 589, 155 N.E. 143.

The parties agree that one of the controlling cases on this subject is Indus. Comm. v. Laird (1933), 126 Ohio St. 617, 186 N.E. 718. Laird stands for the important proposition that "[t]he vital test, in determining whether a person employed to do certain work is an independent contractor or a mere servant, is the control over the work which is exercised by the employer. * * * The ultimate question is not whether the employer actually exercises such control, but whether he has the right to control. * * * " Id. at 619, 186 N.E. at 719.

Hence, the "right to control" is agreeably the key factor in making the determination of whether an individual is an independent contractor or an employee. Therefore, in determining whether summary judgment was proper in this case, the trial court was required to merely compile, not weigh, the material facts and determine whether reasonable minds could only come to the conclusion that appellant was appellee's employer.

Certainly, as previously established, the "right to control" seems to be the key, tie-breaking factor in making this determination. However, the law is also clear that all indicia of the employment relationship in a given case must be assessed together as a whole as well. Gillum v. Indus. Comm. (1943), 141 Ohio St. 373, 25 O.O. 531, 48 N.E.2d 234. Thus, we are mindful that absolute standards are not applicable when addressing this particular issue, and that case law has developed generally recognized criteria to assist in determining whether someone is an independent contractor or an employee as a matter of law.

As we will more fully discuss in our forthcoming analysis, we agree that there was no dispute as to the material facts bearing on the issue of whether Harmon was an employee or an independent contractor. Accordingly, we feel constrained by the controlling case law to conclude that the question became a matter of law to be decided by the trial court in a summary judgment exercise. However, as stated, we come to such conclusion with strong reservations and cautious regard for the fine line between making findings of fact and drawing conclusions of law in this particular realm. Although Bostic stands for the proposition that in the face of undisputed facts, summary judgment is appropriate, it ignored the possibility that such "undisputed" facts may still be adversarial in nature, thus posing a genuine issue of material fact.

For example, in addition to the "right to control,"...