Seese v. Ohio Bur. of Workers' Comp.Seese v. Ohio Bur. of Workers' Comp.
Judgment: Affirmed.
Joseph A. Moro, Heller, Maas, Moro & MaGill Co., L.P.A., 54 Westchester Drive, #10, P.O. Box 4144, Youngstown, OH 44515 (For Appellant).
Richard Cordray, Attorney General, State Office Tower, 30 East Broad Street, Columbus, OH 43215-3428, and Steven K. Aronoff, Assistant Attorney General, 615 West Superior Avenue, 11th Floor, Cleveland, OH 44113-1899 (For Appellee Administrator, Bureau of Workers’ Compensation).
Gregory B. Denny and Andrew J. Wilhelms, Bugbee & Conkle, L.L.P., 405 Madison Avenue, #1300, Toledo, OH 43604 (For Appellee Devon Industrial Grоup).
MARY JANE TRAPP, P.J.
{¶1} Paul D. Seese appeals from the judgment of the Trumbull County Court of Common Pleas denying his Motion for Judgment Notwithstanding the Verdict. Mr. Seese sustained injuries in a motorcycle accident en route to his regular work site on a Saturday, a day he was not normally scheduled for work. The sole issue presented in this appeal is whether the coming-and-going rule excludes him from participation in the
{¶2} Substantive Facts and Procedural History
{¶3} Mr. Seese was employed by Devon Industrial Group, LLC, as a union carpenter foreman at the time of the incident. Devon had won a bid on a project at General Motors’ Lordstown plant and Mr. Seese was assigned to work at the paint shop at the plant. He normally worked Monday through Friday. At the time of the incident, he had been commuting to Lordstown for this job for a year and half. The commute took between 15 and 20 minutes, and he would sometimes ride his motorcycle for the commute.
{¶4} In the morning of May 22, 2004, a Saturday, Mr. Seese received a telephone call from his supervisor, David DelRio. Apparently a wind storm the night before had damaged some roof paneling at the paint shop and water was dripping on the machinery at the shop. Mr. DelRio needed a carpenter to repair the paneling.1
{¶5} After receiving the telephone call, Mr. Seese got on his motorcycle, stopping first at a gas station to purchase gasoline and coffee. While at the gas station, Mr. DelRio telephoned again and asked Mr. Seese when he would arrive. Mr. Seese quickly resumed his trip to the plant. After traveling two miles, he stopped in the line of traffic for a red light behind a truck and then was involved in a serious accident.
{¶6} The details of the accident were not offered at trial. Mr. Seese‘s own testimony shows that the road conditions on that day were normal despite the wind
{¶7} Mr. Seese filеd a claim with the Ohio Bureau of Workers’ Compensation, which was denied by the Administrator but allowed by the Industrial Commission. His employer, Devon, filed a notice of appeal with the trial court pursuant to
{¶8} The matter proceeded to a jury trial and the jury returned a verdict in favor of Devon. Mr. Seese filed a Motion for Judgment Notwithstanding the Verdict and a Motion fоr New Trial. The trial court denied both motions. Mr. Seese now appeals, assigning the following error for our review:
{¶9} “The trial court erred to the prejudice of the plaintiff-appellant in denying his motion for judgment notwithstanding the verdict.”
{¶10} Standard of Review
{¶11} We review a trial court‘s ruling on motion for judgment notwithstanding the verdict (“JNOV“) de novo. See Lanzone v. Zart, 11th Dist. No. 2007-L-073, 2008-Ohio-1496, ¶56. Where a party seeks JNOV, “[t]he evidence adduced at trial and the facts established by admissions in the pleadings and in the record must be construed most strongly in favor of the party against whom thе motion is made, and, where there is substantial evidence to support his side of the case, upon which reasonable minds may
{¶12} The Coming-and-Going Rule
{¶13} The sole issue presented by this appeal is whether Mr. Seese‘s injuries sustained while he travelled to work on a day he was not scheduled for work in response to an urgent situation at his regular work site is compensable under the Workers’ Compensation program. Because he is undisputedly an employee with a fixed place of employment, a proper analysis of this issue requires a summary of the analytical framework provided by the Supreme Court of Ohio for such “fixed-situs” employees.
{¶14} “As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in the Workers’ Compensation Fund because the requisite causal connection between the injury and the employment does not exist.” MTD Products, Inc. v. Robatin (1991), 61 Ohio St.3d 66, 68. The so-called coming-and-going rule operates to bar a fixed-situs employee from participation in the Workers’ Compensation program. In Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, the Supreme Court of Ohio further explained the “coming-and-going” rule as follows:
{¶16} An analysis under the coming-and-going rule begins with the question of whether the employee has a fixed place of employment, i.e., a fixed-situs employee, as opposed tо an employee with periodic reassignment of job sites. In the instant case it is undisputed that Mr. Seese had a fixed place of employment at the Lordstown plant at the time of the incident. Classification of the employee as a fixed-situs employee, however, does not end the inquiry under the coming-and-going rule. This is because the courts have carved out several exceptions to the rule. Therefore, a fixed-situs employee is not automatically barred from particiрation in the Workers’ Compensation program.
{¶17}
{¶18} Course of Employment
{¶19} The “course-of-employment” inquiry involves “the time, place, and circumstances of the injury,” which are factors to use “to determine whether the required nexus exists between the employment relationship and thе injurious activity.” As the court in Ruckman explained:
{¶20} “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.
{¶22} “In order to avail himself of the provisions of our compensation law, the injuries sustained by the employеe, must have been ‘occasioned in the course of’ his employment. *** If the injuries are sustained [off premises], the employee, acting within the scope of his employment, 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.” Id. (internal citations omitted).
{¶23} “Under this requirement, the employee need not necessarily be injured while performing work for his employer. It is enough if the employee can show that his injury was sustained while he was engaging in an activity that is consistent with the contract for hire and logically related to his employer‘s business. Normally, an employee‘s commute to a fixed work site is not sufficiently related to the employer‘s business to be in the course of employment.” Werden v. Adm‘r. Bureau of Workers’ Comp., 151 Ohio App.3d 815, 2003-Ohio-1222, ¶15 (internal citations to Ruckman, supra, omitted).
{¶24} An example of how an injured employee with a fixed place of employment can satisfy the “course-of-employment” element was demonstrated in Ruckman. In that case, the employees sustained injuries from traffic accidents while travelling from their homes to rеmote locations where their employer assigned them to drill wells. Despite periodic reassignment of job sites, the employees’ workday began and ended at the
{¶25} “In the normal context, an employee‘s commute to a fixed work site bears no meaningful relation to his employment contract and serves no purpose of the employer‘s business. That is not the case, however, where, as here, the employee travels to the premises of one of his employer‘s customers to satisfy a business obligation. Under the standard announced by this court in Indus. Comm. v. Bateman (1933), 126 Ohio St. 279, the riggers here have established the required relationship between employment and injury to satisfy the course-of-emрloyment requirement.” Id. at 121. Quoting Indus. Comm. at paragraph two of the syllabus, the Ruckman court further explained the notion of course-of-employment:
{¶26} “In order to avail himself of the provisions of our compensation law, the injuries sustained by the employee, must have been ‘occasioned in the course of’ his employment.’ *** If the injuries are sustained [off premises], the employee, acting within the scope of his employment, 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.” Id.
{¶27} Arising Out Of Employment
{¶28} To satisfy the definition of injury under
{¶29} The totality of the circumstances test is used to determine “whether there exists a sufficient causal connection between injury and employment to justify a claimant‘s participation in the fund.” Ruckman at 122. “That test requires primary analysis of the following facts and circumstances: ‘(1) the proximity of the scene of the accident to the place of employment, (2) the degree of control the employer had over the scene of the accident, and (3) the benefit the employer received from the injured employee‘s presence at the scene of the accident.‘” Id. (citation omitted). The Ruckman court emphasized, however, these enumerated factors are not exhaustive and the test may continue to evolve. Id.
{¶30} Under the “zone of employment” exception, a fixed-situs employee is not barred from recovery pursuant to the coming-and-going rule if his injury occurs with the “zone of employment.” MTD Products at 68, citing Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 304.
{¶31} Regarding the “special hazard” exception, which is pertinent to thе instant appeal, the Supreme Court of Ohio described the exception as: “[a] fixed-situs employee is entitled to workers’ compensation benefits for injuries occurring while coming and going from or to his place of employment where the travel serves a function of the employer‘s business and creates a risk that is distinctive in nature from or quantitatively greater than risks common to the public.” Ruckman at paragraph two of syllabus.
{¶33} At the trial in the instant case, the parties focused on whether Mr. Seese‘s injuries qualified under the various exceptions to the arising-out-of-employment prоng of the analysis. The trial court instructed the jury, as Mr. Seese requested, on the “zone of employment” and “special hazard” exceptions to the coming-and-going rule.3 In addition, Mr. Seese requested an instruction on the “special mission” exception. The Ruckman court did not mention this exception but it was discussed in a 1966 appellate decision, Pierce v. Keller (1966), 6 Ohio App.2d 25. There, the Third District described the “special mission” rule as follows:
{¶34} “An exception to the general rule *** that the workmen‘s compensation law ordinarily does not cover an employee injured while going to, or returning from, his employment exists where the injury is sustained by the employee while performing a special task, service, mission, or errand for his employer, even before or after customary working hours, or on a day on which he does not ordinarily work. For the exception to arise, the mission must be the major factor in the journey or movement, and not merely incidental thereto, and the mission must be a substantial one.” Pierce at 29 (citation omitted).
{¶36} Whether the “Special Hazard” or “Special Mission” Exception Applied to Mr. Seese‘s Injuries
{¶37} The trial transcript indicates Mr. Seese attempted to show his injuries qualified under the exceptions to the coming-and-going-rule under the arising-out-of-employment inquiry.4 He requested, and the trial court provided, instructions on the “zone of employment,” “special hazard,” and “special mission” exceptions to the coming-and-going rule. On appeal he only claims he is entitled to recovery under the “special
{¶38} In support of his claim that he qualified for recovery under one of the exceptions, Mr. Seese presented testimony that he drove his motorcycle to his regular work site, a paint shop at GM‘s Lordstown plant, on a Saturday, after he received an urgent telephone call from his supervisor. The roof panels at the shop had been damaged by the wind storm the night before and required immediate repair. Mr. Seese himself testified, however, that the weather conditions on that day were normal and nothing inhibited his ability to see. Although he testified he observed, when he walked his dog earlier that day, that tree branches and leaves were strewn on the street due to the storm, there was nо testimony showing that any debris on the street played a role in the accident. He testified the only road hazards in his commute were the railroad tracks, which he acknowledged was a risk faced by the general public.
{¶39} Furthermore, Mr. Seese testified while he stopped at the gas station, he received another call from his supervisor, which caused him to get back on his motorcycle in a hurry. No testimony, however, suggests that speed was a factor in the motorcycle accident.
{¶40} Thеrefore, the evidence presented at trial does not establish the requisite causal relationship between Mr. Seese‘s injuries and his employment for him to avoid the application of the coming-and-going rule. We recognize that but for his employer‘s need for his presence at work due to a storm, he would not have sustained the injuries. However, the courts have required an employee injured while commuting to a fixed work site to satisfy more than the but-for test in order to participаte in the Workers’ Compensation program.
{¶42} Mr. Seese similarly failed to demonstrate he qualified under the “special mission” exception pursuant to Pierce. In Pierce, the “special mission” involved the employee‘s carrying instructions from his employer to his regular work site. The court explаined that the employee‘s carrying instructions for the employer while traveling to work from home did not qualify the employee under the “special mission” exception, because the mission was merely incidental to the journey and not the reason for the journey. Mr. Seese misunderstood the notion of “special mission.” Unlike the employee in Pierce, Mr. Seese was not performing any task, mission, or errand for his employer when he sustained his injury. He was merely driving to work, albeit on a day he did not ordinarily work, in rеsponse to his employer‘s urgent need. There was no “special mission” Mr. Seese was carrying out while he travelled to work; commuting to work on a day not regularly scheduled does not constitute a special mission contemplated by the exception as explained in Pierce. The injuries Mr. Seese sustained, as his own testimony indicates, were a result of normal hazards regularly encountered by the
{¶43} On-Call Employee Exception
{¶44} On appeal, Mr. Seese also argues, for the first time, that he was an on-call employee subject to recall by his employer at all hours and therefore his injuries qualify under the on-call employee exception applied by the First District in Durbin v. Ohio Bureau of Workers’ Compensation (1996), 112 Ohio App.3d 62. In that case, the court stated “where an employee, who has no regular hours of employment but is on call and subject to recall by his employer at all hours, is struck by an automobile and injured while responding to a call from his employеr to go to his place of employment, there is a sufficient causal connection between the injury and the employment to permit participation in the workers’ compensation system.” Id. at 67.
{¶45} The trial transcript reflects Mr. Seese did not request an instruction on the “on-call” exception. Therefore, he waived his right to raise any issue relating to this claim on appeal. Even if he did request the jury instruction, we note that the evidence does not support the claim that Mr. Seese wаs an on-call employee. On the contrary, Mr. Seese testified he worked regular hours from Monday through Friday. There was no evidence showing he had no regular hours and was subject to recall at all hours by his employer.
{¶46} Consequently, applying the standard of review for a motion for JNOV and construing the evidence most strongly in favor of his employer, we conclude the trial court did not err in denying Mr. Seese‘s motion for JNOV after the jury found his injuries not recoverable under the state‘s Workers’ Compensatiоn program. We sympathize with Mr. Seese for the serious injuries he sustained en route to work on a day he was
{¶47} For the foregoing reasons, we overrule Mr. Seese‘s assignment of error and affirm the judgment of the Trumbull County Court of Common Pleas.
CYNTHIA WESTCOTT RICE, J.,
TIMOTHY P. CANNON, J.,
concur.