Lead Opinion
The issue in this case is whether Stivison’s broken nose and arm qualify as injuries “received in the course of, and arising out of,” his employment.
For the purposes of workers’ compensation, R.C. 4123.01(C) defines an “injury” as “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.”
The assault which injured Stivison occurred neither during his working hours, nor at his place of employment, nor while he was fulfilling his working duties. Stivison’s injuries were, therefore, not sustained “in the course of’ his employment, as that phrase is interpreted by Ohio law. Accordingly, summary judgment in favor of Goodyear was properly granted on this element alone, because, construing the evidence most strongly in favor of Stivison, reasonable minds could only conclude that the claimant here could not show that he met all the elements of the Fisher coverage formula.
Not only does Stivison’s claim fall outside the limits of “course of employment,” but also his claim is disqualified by the requirement of causal connection in the phrase “arising out of employment.” Many uncompensable injuries can be said to bear some causal relation to employment, but legal analysis must focus upon the nature and degree of causal connection. Prosser & Keeton, Law of Torts (5 Ed.1984) 266, Section 41. The totality of the circumstances test set forth in Lord v. Daugherty (1981),
“Whether there is a sufficient ‘causal connection’ between an employee’s injury and his employment to justify the right to participate in the Workers’ Compensation Fund depends on the totality of the facts and circumstances surrounding the accident, including, (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. at syllabus.
The restaurant where Stivison was injured is about a mile from the Goodyear plant. Goodyear has no control over the restaurant and received no benefit from Stivison’s presence there.
Noting cases where this court has allowed compensation for off-site injuries, Stivison argues that the court of appeals overemphasized the fact that he was not on Goodyear’s premises when his injury occurred. Although all compensable injuries must both be received in the course of and arise out of employment, it is true that there are cases where compensation is allowed despite failure to comply with all the factors of the Fisher coverage formula. In Fisher, we noted that no single factor is controlling, that through the recurrence of similar fact patterns, rules have developed that define categories of exceptions. Id.,
Stivison also argues that Ryan v. Connor (1986),
Because, as a matter of law, Stivison’s injuries fall short of meeting the criteria for both “in the course of’ and “arising out of’ employment and fit no exception, we hereby affirm the appellate court’s judgment affirming summary judgment.
Judgment affirmed.
Notes
. Stivison argues that the third element of the totality of the circumstances test is primarily satisfied by the benefit to the employer from Stivison’s answering truthfully when questioned about
Dissenting Opinion
dissenting. Appellee, Goodyear Tire & Rubber Company (“Goodyear”), had been experiencing attendance problems at its Logan, Ohio plant. On November 6, 1992, claimant-appellant, Richard Stivison, was approached by his supervisor, Bill Egger, who asked whether a co-worker, Jeffrey McCormick, had left work early the previous day. Believing it was his duty to answer truthfully, claimant told Egger that McCormick had been leaving work early. Because of this event, McCormick chose to assault claimant two weeks later at a time and place remote from claimant’s employment, leaving claimant with two black eyes, a fractured nasal bone, and two broken bones in his left forearm requiring steel plates.
The message sent today by the majority to the Ohio worker is that if you suffer disabling injuries as a result of having truthfully answered your employer’s work-related inquiries, it is you alone who will bear the burden of economic loss. This is indeed a curious public policy in light of the fact that the theory upon which workers’ compensation is based is that the burden of economic loss attributable to the risks of employment should be borne by the industry rather than by the individual or society as a whole. State ex rel. Munding v. Indus. Comm. (1915),
Moreover, the majority’s decision stands for the absurd proposition that compensability turns on whether the criminal perpetrating the assault is considerate enough of claimant’s compensation position to have assaulted him or her within the “zone of employment” or while claimant was performing some activity incidental to employment. I must, therefore, respectfully but strenuously dissent.
The majority begins its analysis by identifying the broad issue of whether claimant’s “broken nose and arm qualify as injuries ‘received in the course of, and arising out of,’ his employment.” Although Goodyear does not deny that the conversation between claimant and his supervisor regarding McCormick’s attendance at work satisfies the “arising out of’ prong of the coverage formula, the majority takes it upon itself to conclude that “[n]ot only does Stivison’s claim fall outside the limits of ‘course of employment,’ but also his claim is disqualified by the requirement of causal connection in the phrase ‘arising out of employment.’ ”
The majority’s application of the “arising out of’ prong is so fundamentally flawed that it is impossible to refute on its own terms. Essentially, the majority
“Assaults arise out of the employment * * * if the reason for the assault was a quarrel having its origin in the work.” 1 Larson, Law of Workmen’s Compensation (1997) 3-200, Section 11.00. Thus, “[a]part from any environmental risk, causal connection with the employment may be shown by connecting with the employment the subject matter of the dispute leading to the assault.” Id. at 3-238, Section 11.12. It is mere tautology to suggest, as the majority does, that the assault itself is the cause to which the “arising” test is to be applied. This is as much as to say that the assault is the cause of the assault. The assault is the effect, not the cause, of something, and the question is whether that something arose out of employment. The cause — the reason, the subject matter — of the assault in this case was the work-related conversation between claimant and his supervisor regarding McCormick’s attendance at work. There is, therefore, a causal relationship between claimant’s injuries and his employment.
The majority, citing Prosser & Keeton, Law of Torts (5 Ed.1984) 266, Section 41, seeks to justify its misapplication of the “arising” prong by explaining that “[m]any uncompensable injuries can be said to bear some causal relation to employment, but legal analysis must focus upon the nature and degree of causal connection.” However, if the majority had simply turned to Prosser & Keeton, Law of Torts, supra, at 568, Section 80, it would have discovered that “workers’ compensation acts * * * do not rest upon any theory of tort liability.” Indeed, as Professor Larson explains:
“It is instantly apparent that ‘arising out of the employment’ does not mean exactly the same thing as ‘legally caused by the employment.’ It is true, as many courts and writers have said, that ‘arising’ has something to do with causal connection; but there are many shades and degrees of causal connection, of which ‘legal’ or ‘proximate’ cause is only one. * * * [I]n the ‘arising’ phrase the function of the employment is passive while in the ‘caused by’ phrase it is active. When one speaks of an event ‘arising out of employment,’ the initiative, the moving force, is something other than the employment; the employment is thought of more as a condition out of which the event arises than as the force producing the event in an affirmative fashion. In tort law the beginning point is always a person’s act, and the act causes certain consequences. In workers’ compensation law the beginning point is not an act at all; it is a relation or condition or situation — namely, employment. * * * Thus, at the very outset, it is plain that the attempt to make ‘arising’ equivalent to ‘causation’ is blocked by the
It is mere sophistry to suggest, on the basis of misapplied tort theories and environmental factors, that a claimant who is beaten in retaliation for a work-connected conversation with his supervisor has failed to show that his injuries arose out of employment. Any layperson can see the connection between employment and injury.
The real question in this case, one which the majority has completely ignored, is whether “delayed-action” injuries are compensable. A delayed-action injury is an injury which has its originating or contributing cause in an incident or event that occurs entirely within the time and place limits of the employment, but has its moment of physical impact or manifestation at a time and place remote from the employment.
The conceptual difficulty encountered by these kinds of injuries lies in too strict an application of the “in the course of’ prong of the coverage formula. By virtue of its uncompromising insistence on independent satisfaction of the “course” prong, the majority ignores that particular times, places, and circumstances “in the course of’ employment precipitated claimant’s injuries and recovery should be allowed.
In defining “injury,” R.C. 4123.01(C) sets forth the basic coverage requirement that, to be compensable, an injury must be “received in the course of, and arising out of, the injured employee’s employment.” This coverage formula “shall be liberally construed in favor of employees and the dependents of deceased employees.” R.C. 4123.95. This means that the phrase “received in the course of, and arising out of’ must be liberally construed in favor of awarding benefits. Fisher v. Mayfield (1990),
In Fisher, supra,
“We now expressly recognize the conjunctive nature of the coverage formula of ‘in the course of and arising out of the employment. Therefore, all elements of the formula must be met before compensation will be allowed.”
As explained in Fulton, Ohio Workers’ Compensation Law (1991) 147, Section 7.5:
“Although most discussions of the coverage formula analyze the ‘arising out of and the ‘in the course of tests independently, the factors actually merge into a single test of work-connectedness. [Bralley v. Daugherty (1980), 61 Ohio St.2d
Yet the majority insists on separately and strictly applying each “half of the coverage formula.” This approach echoes the appellate court’s view that “the two prongs [of the coverage formula] are distinct” and Goodyear’s argument that Fisher “acknowledged the dual nature of the test of compensability set forth in R.C. 4123.01(C).” Although the majority, the court of appeals, and Goodyear offer no insight into how that conclusion has been arrived at, their methods of analysis suggest that they drew support from the fact that Fisher continued to require that “all elements of the formula must be met before compensation will be allowed,” Fisher,
However, the view of the majority in Fisher, that the coverage formula is conjunctive in nature, stands in stark contrast to that of the dissenting justices, that there is a “dual statutory requirement for establishing a compensable injury.” Id.,
In a particularly poignant analysis, the Court of Appeals for Williams County, in Fletcher v. Northwest Mechanical Contr., Inc. (1991),
“ ‘[I]t should never be forgotten that the basic concept of compensation coverage is unitary, not dual, and is best expressed in the term “work connection” * * *. [A]n uncompromising insistence on independent application of the two portions of the test can, in certain cases, exclude clearly work-connected injuries.’ 1 Larson, The Law of Workmen’s Compensation (1989) 3-3, Section 6.10. We do not believe that the Supreme Court of Ohio opted for a strict application of the two prongs of the test. The Supreme Court of Ohio in Fisher, supra,
“That this ‘quantum theory of work-connection’ or ‘sliding scale’ analysis is inescapable is evident by the analysis in Fisher, supra. In Fisher, the court stated that ‘ * * * whether appellant’s injuries arose out of her employment is determined from the totality of circumstances, using the factors set forth in Lord, supra.’ Id.,
It is precisely in the delayed-action case that a strict application of the coverage formula works its greatest injustice. See 2 Larson, Law of Workmen’s Compensation (1997) 5-483 to 5-485, Section 29.21(a). As Professor Larson
The usual off-premises course-of-employment rules were developed in those cases where the entire injurious event, both in cause and effect, occurs beyond the strict time, place, and activity limits of the employment. In such cases, the situs of employment or the activity at hand is crucial, since there is nothing else to connect the employment to the injury. Since no single unit of injury can be said to lie within the strict bounds of employment, other factors become critical. Thus, where the injurious incident from beginning to end occurs beyond the geographical boundaries of the employer’s premises, or while the employee is not in the actual performance of his or her duties, the inquiry becomes whether the employee was within the “zone of employment,” was exposed to a “special hazard,” or was engaged in activity incidental to the employment, as the case may be. See MTD Products, Inc. v. Robatin (1991),
The fact pattern presently before the court is not one in which the cause and manifestation of injury coincide. The entire injurious event cannot be said to have occurred entirely remote from the employment. While the moment of impact or manifestation of injury occurred beyond the employment setting, the cause of injury originated in a risk connected with the employment. As Professor Larson explains:
“In all the[se] cases * * *, the common element is the fact that [the] originating cause of the injury is something that occurs entirely within the time and place limits of the employment. The time bomb, so to speak, is constructed and started ticking during working hours; but it happens to go off at a time and place remote from the employment. The hazards of the employment, whether the animosity of a fired employee, a needle-like shaving in the eyebrow, or dynamite cap in the pocket, follow the claimant beyond the time and space limits of his work, and there injure him.” (Footnote omitted.) 2 Larson, supra, at 5-506 to 507, Section 29.22.
The usual course-of-employment rules were simply not designed for cases where the manifestation of an injury occurs later than the precipitating event.
The more reasoned view, as Professor Larson explains, is that “in Workmen’s Compensation the controlling event is something done to, not by, the employee, and since the real question is whether this something was an industrial accident, the origin of the accident is crucial, and the moment of manifestation should be immaterial.” (Emphasis sic.) 2 Larson, supra, at 5-504, Section 29.22.
In Indus. Comm. v. Pora (1919),
The commission argued that, at the time of the assault, Pora was not in the course of his employment, relying in part on Little Miami RR. Co. v. Wetmore (1869),
“The outstanding difference is that in the Wetmore case the inquiry was one to ascertain whether the employee committing the assault was in the course of his employment; while here the inquiry is, Was the employee assaulted in the course of his employment?
“Without derogation in any sense to the rights of Pora it may be admitted without qualification that the employee who assaulted him was acting wholly outside the course of his employment.” (Emphasis sic.) Id.,
Thus, this court has fully embraced the concept that the controlling event in workers’ compensation is something done to, not by, the employee. It should logically follow that an off-premises assault is a compensable event where the originating cause is something that occurs within the time and place limits of the employment.
However, for many years, the court judicially limited the payment of workers’ compensation only to those employees whose physical injuries resulted from contemporaneous physical injury or physical trauma. The court allowed claims where the full extent of the injury became manifest later than the precipitating event, but was compelled to identify some physical trauma, however slight, which coincided with the workplace cause. Thus, delayed injuries or death resulting from contact with poisonous gases or substances, forces of nature or artificial heat, eating contaminated food, or being vaccinated at work were held compensable on the basis that the injury-producing event caused some type of contemporaneous physical impact or harm, whether it be a derangement of bodily functions, degenerative changes in tissues, or simply a needle prick. Sebek v. Cleveland Graphite Bronze Co. (1947),
“A physical injury occasioned solely by mental or emotional stress, received in the course of, and arising out of, an injured employee’s employment, is compensable under R.C. 4123.01(C).” Id. at paragraph one of the syllabus.
In so holding, the court found “no reasonable basis for continuing to judicially limit the payment of workers’ compensation only to those employees whose physical injuries resulted from ‘contemporaneous physical injury or physical trauma.’” Id.,
The requirement of contemporaneous physical impact having been removed, there is no longer any lawful impediment to recognizing “delayed-action” injuries as compensable. Other courts have done so, and their reasoning is quite persuasive. In Daniello v. Machise Express Co. (1972),
The court held in favor of compensation, finding that a strict application of the “course” test “fail[s] to adhere to the fundamental objects of workmen’s compensation laws.” Id.,
*509 “(C) * * * ‘Injury does not include:
“(1) Psychiatric conditions except where the conditions have arisen from an injury or occupational disease.”
In his dissent, Justice Wright opined that this amendment accords with the Szymanski and Toth decisions. Id.,28 Ohio St.3d at 416 , 28 OBR at 471,503 N.E.2d at 1387 (Wright, J., dissenting). He therefore predicted: “Happily, the effect of this decision will be short-lived in light of the recent action of the General Assembly noted above.” Id.,28 Ohio St.3d at 417 , 28 OBR at 472,503 N.E.2d at 1388 .
As Professor Larson observes: “He is wrong. The amendment will rule out the mental [cause]mental [harm] category, which it obviously was designed to do. It will not rule out the mental-physical category, since there the ‘injury’ is the heart attack, not the psychiatric condition. That condition is the cause of the injury, not the injury itself.” 3 Larson, supra, at 7-821 to 7-822, fn. 39.1, Section 42.21(a).
In Joy v. Florence Pipe Foundry Co. (1960),
“Secondly, we deem it necessary to point out the error inherent in a too strict construction of the clause, ‘in the course of his employment.’ The primary inquiry should always be whether the injury for which compensation is sought is work-connected; the point in time at which that injury manifests itself should not be determinative. If the contributing or causative factors occur in the course of employment, it is not necessary that the consequent disability manifest itself at that time.” Id.,
In Graybeal v. Montgomery Cty. Bd. of Supervisors (1975),
Bearshield v. Gregory (S.D.1979),
The South Dakota Supreme Court, holding in claimant’s favor, explained as follows:
The court analogized the murderer’s animosity to “a time bomb which was fueled by various arrests and contacts, ignited by the jailing of [the murderer’s] mother, and happened to explode while decedent was on vacation. Particular times, places and circumstances ‘in the course of employment’ precipitated the injury and recovery should be allowed.” Id.,
Not only is the reasoning employed by these various courts sound, but the facts of the cases are perhaps the most eloquent argument that can be made in support of Fisher’s warning that “the application of hard.and fast rules can lead to unsound and unfair results.” Fisher,
“In the delayed-action case where the cause and manifestation of an injury fail to coincide, the injury is a compensable one under R.C. 4123.01(C) if its original or contributing cause is employment-related and occurs within the time and place limits of the employment, regardless of the time, place, and circumstances in which the injury manifests itself or the physical impact occurs.”
Applying this holding to the facts of the case sub judice, it is clear that the court of appeals erred in affirming summary judgment in favor of Goodyear. The precipitating event or original cause of the assault by McCormick and the attendant injuries to claimant was the conversation between claimant and his supervisor regarding McCormick’s attendance habits. Since this event was employment-related, it must be concluded that the original cause of claimant’s injuries arose out of his employment with Goodyear. Also, since the conversation took place entirely within the time, place, and circumstances of the employment, it must be concluded that the injury occurred in the course of claimant’s employment with Goodyear.
The fact that the assault occurred two weeks later than the precipitating event and approximately one mile away from the Goodyear plant is irrelevant not only for purposes of coverage under R.C. 4123.01(C), but for purposes of so-called legal causation as well. Physical or temporal remoteness does not itself eviscerate the causal connection, either under workers’ compensation law or tort law. 2 Larson, supra, at 5-501, Section 29.21(f); 1 Larson, supra, at 3-258 to 3-266, Section 11.13. See, also, Estates of Morgan v. Fairfield Family Counseling Ctr. (1997),
Accordingly, justice demands that the judgment of the court of appeals be reversed, and the cause be remanded to the trial court to enter judgment in favor of claimant. •
. At the time Ryan was decided, the General Assembly had recently amended the definition of “injury” contained in R.C. 4123.01(C). Am.Sub.S.B. No. 307, 141 Ohio Laws, Part I, 718. That amendment, effective August 22, 1986, reads: