Werden v. Ohio Bur. of Workers' Comp.

• Decision Date: 13 March 2003
• Docket Number: No. 02-CA-102.,02-CA-102.
• Citation: 151 Ohio App.3d 815,2003 Ohio 1222,786 N.E.2d 107
• Parties: WERDEN, Appellant, v. OHIO BUREAU OF WORKERS' COMPENSATION; ServiTemp, Inc., Appellee.
• Court: Ohio Court of Appeals

Page 107

786 N.E.2d 107

151 Ohio App.3d 815

2003 Ohio 1222

WERDEN, Appellant, v. OHIO BUREAU OF WORKERS' COMPENSATION; ServiTemp, Inc., Appellee.

No. 02-CA-102.

Court of Appeals of Ohio, Seventh District, Mahoning County.

Decided March 13, 2003.

COPYRIGHT MATERIAL OMITTED

Elliott, Heller, Maas, Moro & Magill Co., L.P.A., and C. Douglas Ames, Youngstown, for appellant.

Bricker & Eckler LLP and Thomas R. Sant, Columbus, for appellee.

GENE DONOFRIO, Judge.

{¶ 1} Plaintiff-appellant, Kenneth C. Werden, appeals from a judgment of the Mahoning County Common Pleas Court granting summary judgment in favor of defendant, the Administrator of the Bureau of Workers' Compensation, and defendant-appellee, Servi-Temp, Inc.

{¶ 2} Appellant was injured in an automobile accident on his way to a work site on November 24, 1999. At the time, appellant was employed by appellee as a sheet metal worker. Appellee is a mechanical contractor for commercial and industrial projects. On the date of appellant's accident, he was to report to work on a job site at Commercial Intertech on Logan Avenue in Youngstown.

{¶ 3} Appellant filed a claim for workers' compensation for the injuries he sustained to his right hip, including dislocation and a fracture of his femur. The claim was allowed and appellee appealed the decision. The appeal was heard before the Industrial Commission's district hearing officer and subsequently by its staff hearing officer. Both allowed appellant's claim. Appellee pursued an appeal of the case to the Industrial Commission; however, the Industrial Commission refused further consideration of the claim. Appellee then filed an appeal in the trial court. Appellant reified his complaint for workers' compensation benefits in the trial court on November 5, 2001. On March 15, 2002, appellee filed a motion for summary judgment. The court found that appellee was entitled to judgment as a matter of law and entered summary judgment in its favor on May 3, 2002. Appellant filed his timely notice of appeal on May 31, 2002.

{¶ 4} Appellant raises one assignment of error, which states:

{¶ 5} "The trial court erred in holding that the undisputed facts mandate judgment in favor of granting summary judgment."

{¶ 6} In reviewing an award of summary judgment, appellate courts must apply a de novo standard of review. Cole v. Am. Indus. & Resources Corp. (1998), 128 Ohio App.3d 546, 552, 715 N.E.2d 1179. Thus, we shall apply the same test as does the trial court in determining whether summary judgment was proper. Civ.R. 56(C) provides that the trial court shall render summary judgment if no genuine issue of material fact exists and when construing the evidence most strongly in favor of the nonmoving party, reasonable minds can only conclude that the moving party is entitled to judgment as a matter of law. State ex rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377. A "material fact" depends on the substantive law of the claim being litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. (1995), 104 Ohio App.3d 598, 603, 662 N.E.2d 1088, citing Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-248, 106 S.Ct. 2505, 91 L.Ed.2d 202.

{¶ 7} We should note that the parties attached copies of the staff hearing officer's decision and the district hearing officer's decision to the motion for summary judgment and response in opposition. These decisions were never filed in the trial court. Civ.R. 56(C) lists the types of documents a court may consider when ruling on a motion for summary judgment. They include pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact. Civ.R. 56(C). The proper way to introduce evidentiary matter not specifically authorized by Civ.R. 56(C) is to incorporate such evidence by reference in an affidavit pursuant to Civ.R. 56(E). Robinson v. Springfield Local School Dist. Bd. of Edn., 9th Dist. No. 20606, 2002-Ohio-1382, 2002 WL 462860, at ¶ 25. Neither party followed this procedure. However, both parties attached the copies of the decisions to their motion for and response against summary judgment and both parties referred to the decisions in their motion/response, thus acknowledging their authenticity. Additionally, neither party objected to the court's considering the decisions. Appellate courts have held that such evidence may be considered. See Robinson, 9th Dist. No. 20606, 2002-Ohio-1382; Nalbach v. Cacioppo, 11th Dist. No. 2001-T-0062, 2002-Ohio-53, 2002 WL 32704; Helton v. Ohio Adult Parole Auth. (June 26, 2001), 10th Dist. No. 00AP-1108, 2001 WL 709946. Thus, we will consider the staff hearing officer's and district hearing officer's decisions.

{¶ 8} First, we shall examine the applicable rules to apply in cases where an employee injured on his way to work seeks workers' compensation benefits. In order to participate in the Workers' Compensation Fund, an employee must demonstrate that he sustained his injury both "in the course of" and "arising out of" his employment. R.C. 4123.01(C). The most recent Ohio Supreme Court case on this subject which sets out the rules pertinent to this case, and the one on which both parties rely, is Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 689 N.E.2d 917.

{¶ 9} Cases such as the one at bar are generally covered by the "coming-and-going" rule. The coming-and-going rule is applied to determine whether an injury sustained by an employee in an automobile accident was sustained "in the course of" and "arising out or his employment so as to constitute a compensable injury. Id. at 119, 689 N.E.2d 917. The key determination under the coming-and-going rule is whether the employee is a "fixed-situs" employee. Generally, a fixed-situs employee injured on his way to or from work may not recover from the Workers' Compensation Fund because the requisite causal connection between the injury and the employment is nonexistent. Id., quoting MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, citing Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401 N.E.2d 448. Whether an employee is a fixed-situs employee depends on whether he commences his substantial employment duties only after arriving at a specific and identifiable work place designated by his employer. Id. This focus remains the same even if the employee is reassigned to a different workplace monthly, weekly, or even daily. Id at 120, 689 N.E.2d 917. Each particular job site may constitute a fixed location. Id.

{¶ 10} Appellant argues that he sustained his injuries while in the course of his employment. He contends that to be considered in the course of employment, the employee must be performing a required duty directly or incidentally in the service of his employer as opposed to personal business disconnected with the employment. Appellant asserts that he was required to travel to various job locations as a condition of his employment. He alleges that he was fulfilling a job requirement while traveling to his employer-assigned job site when he was involved in the automobile accident. In the alternative, appellant argues that even if he is a fixed-situs employee, he is still entitled to benefits because he sustained his injuries while traveling to his job site and such travel serves a function of his employer's business.

{¶ 11} The pertinent undisputed facts as gleaned from the district hearing officer's decision reveal the following. The nature of appellant's employment requires him to drive his own car to various customer locations. Some of his jobs last days while others last several weeks. The customer locations are generally limited to Mahoning, Trumbull, and Columbiana Counties in Ohio and Mercer County in Pennsylvania. Occasionally appellant is required to report to job sites in Cleveland, Pittsburgh, and Uniontown. Additionally, there are times when appellant is required to report to appellee's shop. The amount of time appellant spends at appellee's shop depends on the size of his job. Some weeks appellant never reports to the shop.

{¶ 12} One important disputed fact exists. The district hearing officer found that appellant had job duties that required him to work away from his assigned work locations. On the contrary, Joel Beardman, appellee's vice president, swore in his affidavit that appellant had absolutely no duties to perform away from his assigned work site.

{¶ 13} Both the district hearing officer and the staff hearing officer found that appellant is not a fixed-situs employee; thus, the coming-and-going rule does not prevent him from collecting workers' compensation benefits. The district hearing officer elaborated on her finding stating that appellant had job duties that required him to work away from his assigned work locations. The trial court failed to give any reasons to support its award of summary judgment to appellee.

{¶ 14} Applying the law to the facts of this case, it appears that appellant may not be a fixed-situs employee. Unlike the employees in Ruckman, appellant usually only traveled within a half-hour from his home. More important, however, is whether appellant's workday was confined to reporting to a specific job site and remaining there until the day's end. The answer to this question of fact will likely affect the outcome of this case. The district hearing officer found that appellant had job duties that required him to work away from his assigned work locations. She found that appellant spent time at appellee's shop as well as at customer locations and that appellant's workday did not always begin and end at the customer location. She also found that appellant's job required him to report to the shop and to various job sites. Thus, while coming and going to and from a customer location, from either home or appellee's shop, appellant was engaged in the furtherance of appellee's business. Additionally, the district hearing...