Kerr v. OhioHealth Corp.
| Decision Date | 04 August 2022 |
| Docket Number | 21AP-403 |
| Citation | 194 N.E.3d 435 |
| Parties | Durbin W. KERR, Plaintiff-Appellant, v. OHIOHEALTH CORPORATION et al., Defendants-Appellees. |
| Court | Ohio Court of Appeals |
On brief: Jon Goodman Law, LLC, and Jon H. Goodman ; Janet L. Phillips, Sandusky, for appellant. Argued: Jon H. Goodman.
On brief: Perez & Morris LLC, Richard A. Hernandez, and Rebecca J. Johnson, for appellee OhioHealth Corporation. Argued: Richard A. Hernandez.
DECISION
{¶ 1} Plaintiff-appellant, Durbin W. Kerr, appeals from a judgment of the Franklin County Court of Common Pleas granting the motion for summary judgment filed by defendant-appellee, OhioHealth Corporation ("OhioHealth"), and finding that Kerr was not entitled to participate in the workers’ compensation fund for injuries he sustained on January 25, 2019. For the reasons which follow, we affirm.
{¶ 2} OhioHealth employed Kerr as a social worker in their hospice department. OhioHealth assigned patients to Kerr, and Kerr's job generally involved "link[ing] patients up with resources, provid[ing] support for the patient and families." (Kerr Depo. at 30.) Kerr would conduct a psychosocial assessment of his patients, which involved assessing the patient's medical history, limitations, and abilities, reviewing the patient's current services, and anticipating future services the patient may need. Kerr worked from 8:00 a.m. to 4:30 p.m. and was a salaried employee.
{¶ 3} OhioHealth required that Kerr travel to see his patients in the personal residence or nursing facility where the patient was located. Kerr's assigned geographic area was Franklin County, Ohio, and OhioHealth generally assigned Kerr to patients located in the Clintonville and Linden neighborhoods. Kerr drove his personal vehicle to patient visits and typically visited four or five patients a day. OhioHealth reimbursed Kerr's mileage and provided him with a cell phone and laptop computer. Although OhioHealth maintained a work space for social workers at OhioHealth's Kobacker House, a hospice care center, Kerr was not required to report to Kobacker House on a daily basis. Kerr did report to Kobacker House once a week for a team meeting and stated that he would occasionally work at Kobacker House depending on his schedule. However, if there was "no reason for [him] to go to Kobacker House," Kerr would typically "work from home" and go "straight to [patient] visits from home." (Kerr Depo. at 55-56.) Kerr generally did his "[c]harting [and] phone work" from home. (Kerr Depo. at 56.)
{¶ 4} Kerr worked on a hospice team which consisted of himself, a nurse, a case manager, and a chaplain. In January 2019, Reverend Nooks was the chaplain on Kerr's hospice team. Kerr explained that "through either text or phone or in e-mail," he and the other members of his team would create their daily schedule of patient visits. (Kerr Depo. at 52.) Kerr had a "call-in interdisciplinary team meeting every morning" with his supervisor, but Kerr affirmed that he "construct[ed] [his own daily] schedule" without input from his supervisor. (Kerr Depo. at 51, 59.)
{¶ 5} On January 25, 2019, Kerr and Reverend Nooks drove together in Kerr's car to patient visits which began at 10:30 a.m. at a nursing home. Kerr and Reverend Nooks would often conduct patient visits together and were personal friends. As Kerr and Reverend Nooks’ morning appointments concluded by 11:45 a.m., and they did not have another scheduled visit until 1:30 p.m., they decided to go to lunch. They went to the Rusty Bucket restaurant in Clintonville because it was "en route" to their 1:30 p.m. patient visit at a residence in the same neighborhood. (Kerr Depo. at 66.)
{¶ 6} Kerr parked his car in the restaurant's parking lot and exited the vehicle. As Kerr began walking toward the restaurant, he slipped and fell on ice in the parking lot. Reverend Nooks helped Kerr into the restaurant where they proceeded to have lunch. Following lunch, Kerr drove to Kobacker House and then went to the emergency room. Kerr sustained a concussion and a right wrist fracture from his fall in the parking lot.
{¶ 7} Kerr filed an application for workers’ compensation benefits regarding the injuries he sustained on January 25, 2019. Following a June 14, 2019 hearing, an Industrial Commission of Ohio ("commission") district hearing officer ("DHO") denied Kerr's application, concluding Kerr did not receive his injuries in the course of or arising out of his employment with OhioHealth. A commission staff hearing officer affirmed the DHO's order, and the commission refused further appeal. On November 12, 2019, Kerr filed an action in the trial court, pursuant to R.C. 4123.512, asserting he had a right to participate in the workers’ compensation fund for the injuries he sustained on January 25, 2019.
{¶ 8} OhioHealth filed a Civ.R. 56 motion for summary judgment on September 17, 2020, asserting that the coming-and-going rule precluded Kerr from participating in the workers’ compensation fund and that Kerr's injuries did not occur in the course of or arising out of his employment. Kerr filed a motion for summary judgment on September 21, 2020, asserting the coming-and-going rule did not apply to him and that his injuries had occurred in the course of and arising out of his employment. OhioHealth filed a memorandum in opposition to Kerr's motion for summary judgment on October 14, 2020. Kerr filed a memorandum in opposition to OhioHealth's motion for summary judgment on October 19, 2020, asking the court to deny both parties’ motions for summary judgment.
{¶ 9} On July 19, 2021, the trial court issued a decision granting OhioHealth's motion for summary judgment and denying Kerr's motion for summary judgment. The court held that the location of each of Kerr's patient visits was a fixed worksite, as Kerr's "substantial employment duties commenced when he would arrive at a patient's home." (Decision at 7.) As such, the court held the coming-and-going rule prevented Kerr from participating in the workers’ compensation fund. The court further held that, even if Kerr was not subject to the coming-and-going rule, Kerr's injuries did not occur in the course of or arising out of his employment.
{¶ 10} Kerr appeals and assigns the following two assignments of error for our review:
{¶ 11} Kerr's assignments of error both contend the trial court erred by granting OhioHealth's motion for summary judgment. An appellate court reviews a grant of summary judgment under a de novo standard. Capella III, L.L.C. v. Wilcox , 190 Ohio App.3d 133, 2010-Ohio-4746, 940 N.E.2d 1026, ¶ 16 (10th Dist.), citing Andersen v. Highland House Co. , 93 Ohio St.3d 547, 548, 757 N.E.2d 329 (2001). "[D]e novo appellate review means that the court of appeals independently reviews the record and affords no deference to the trial court's decision." (Internal quotations and citations omitted.) Holt v. State , 10th Dist. No. 10AP-214, 2010-Ohio-6529, 2010 WL 5550693, ¶ 9. Summary judgment is appropriate only when the moving party demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary judgment is made. Civ.R. 56(C) ; State ex rel. Grady v. State Emp. Relations Bd. , 78 Ohio St.3d 181, 183, 677 N.E.2d 343 (1997). In ruling on a motion for summary judgment, the court must resolve all doubts and construe the evidence in favor of the non-moving party. Premiere Radio Networks, Inc. v. Sandblast, L.P. , 10th Dist. No. 18AP-736, 2019-Ohio-4015, 2019 WL 4757045, ¶ 6, citing Pilz v. Ohio Dept. of Rehab. & Corr. , 10th Dist. No. 04AP-240, 2004-Ohio-4040, 2004 WL 1728609, ¶ 8.
{¶ 12} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of informing the trial court of the basis for the motion and of identifying those portions of the record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt , 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). If the moving party fails to satisfy its initial burden, the court must deny the motion for summary judgment; however, if the moving party satisfies its initial burden, summary judgment is appropriate unless the non-moving party responds, by affidavit or otherwise as provided under Civ.R. 56, with specific facts demonstrating a genuine issue exists for trial. Id. ; Hall v. Ohio State Univ. College of Humanities , 10th Dist. No. 11AP-1068, 2012-Ohio-5036, 2012 WL 5336049, ¶ 12, citing Henkle v. Henkle , 75 Ohio App.3d 732, 735, 600 N.E.2d 791 (12th Dist.1991).
{¶ 13} When an Ohio employee is injured or contracts an occupational disease in the course of their employment, they are entitled to receive compensation for the loss sustained on account of the injury or occupational disease. R.C. 4123.54(A). Ohio workers’ compensation statutes define an "[i]njury" as including "any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment." R.C. 4123.01(C).
{¶ 14} The "test of the right to participate in the Workers’ Compensation Fund is not whether there was any fault or neglect on the part of the employer or his employees, but whether a ‘causal connection’ existed between an employee's injury and his...
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