 [Cite as Kershner v. High Point Home Health, Ltd., 2013-Ohio-1370.]




                           IN THE COURT OF APPEALS OF OHIO
                              SECOND APPELLATE DISTRICT
                                    MIAMI COUNTY

 PEGGY L. KERSHNER                :
                                  :     Appellate Case No. 2012-CA-26
        Plaintiff-Appellant       :
                                  :     Trial Court Case No. 11-CV-834
 v.                               :
                                  :
 HIGH POINT HOME HEALTH, LTD.,    :     (Civil Appeal from
 et al.                           :     (Common Pleas Court)
                                  :
        Defendant-Appellees       :
                                  :
                              ...........

                                            OPINION

                              Rendered on the 5th day of April, 2013.

                                             ...........

COREY L. KLEINHENZ, Atty. Reg. #0084244, E.S. Gallon & Associates, 40 West 4th
Street, Suite 2200, Dayton, Ohio 45402
        Attorney for Plaintiff-Appellant, Peggy L. Kershner

MICHAEL DeWINE, by REMA A. INA, Atty. Reg. # 0082549, Ohio Attorney General’s
Office, 150 East Gay Street, 22nd Floor, Columbus, Ohio 43215-3130
        Attorney for Defendant-Appellee, Steve Buehrer, Adm., BWC

PAUL V. DISANTIS, Atty. Reg. #0066334, Dawson Disantis & Myers, 21 West Central
Avenue, Delaware, Ohio 43015
      Attorney for Defendant-Appellee, High Point Home Health, Ltd.

                                          .............
FAIN, P.J.

       {¶ 1}      Plaintiff-appellant Peggy Kershner appeals from a summary judgment

rendered against her, in favor of defendant-appellee Administrator, Bureau of Workers’

Compensation (“BWC”), on Kershner’s claim that she is entitled to participate in the workers’

compensation fund.    Kershner contends that the trial court erred by rendering summary

judgment against her, because her injuries were within the course of, and arising out of, her

employment with defendant-appellee High Point Home Health, Ltd. (“High Point”).

       {¶ 2}     We conclude that the trial court erred in its determination that Kershner’s

claim was barred by the coming-and-going rule, because Kershner established the existence of

genuine issues of material fact with regard to whether she had completed all of her

employment duties before she was injured. Accordingly, the judgment of the trial court is

Reversed, and this cause is Remanded for further proceedings.



I. Kershner Slips, Falls, and Is Injured, After Leaving her Home Health Care Client’s

                   Home, But Before Completing her Assigned Duties

       {¶ 3}   One day in late January 2011, Peggy Kershner was working as a home health

aide for High Point. She went to the home of a High Point client. Kershner parked her

vehicle on a public street, McKinley Avenue in Piqua, Ohio, directly in front of the client’s

home. She then entered the home and performed her employment duties, which included

helping the client to bathe, fixing him a meal and tidying his home. After about an hour, she

left the client’s home and walked to her vehicle. As she opened her driver’s side door, she

slipped on the accumulated snow and ice and fell onto her back. She sustained an injury to
                                                                                          3


her back.

       {¶ 4}    Kershner filed a claim for participation in the workers’ compensation fund,

which was denied by a BWC hearing officer. She appealed. A staff hearing officer denied

the appeal. Kershner then appealed to the Industrial Commission, which filed an order

refusing to hear the appeal. Kershner subsequently appealed to the Miami County Common

Pleas Court. The BWC and High Point both filed motions for summary judgment upon the

ground that her injury did not occur in the course of, and arising out of, her employment.

Kershner filed a response, to which she attached her affidavit.

       {¶ 5}     Of relevance hereto, Kershner averred that she parked her vehicle directly in

front of the client’s home, and that her normal practice was to park as close as possible to a

client’s home. She further averred that when she had finished performing her duties in the

home, she exited and proceeded “in a direct route from his back door to my vehicle parked on

McKinley Avenue without any deviation.” Kershner also averred that:

                [A]t the end of my last scheduled job assignment for the day, I am required to

       notify High Point by that [sic] I had completed my final job assignment for the day.

       On many occasions, upon contacting High Point by way of my personal cell phone of

       my final job assignment completion, High Point would require or instruct me to work

       at an additional job location at another client’s residence before I was permitted to go

       home for the day. When such an event would occur, High Point would provide me

       with the client name and address for my additional job assignment over the telephone

       and also inform me as to how long I was to work at the additional job location. If I

       needed directions to the client’s home, I was additionally assigned to work, High Point
                                                                                                     4


       would also provide me with those directions over the telephone.

       {¶ 6}     Finally, Kershner averred that High Point did not permit her to use a client’s

telephone to inform them that she had completed her last assignment. High Point also had a

policy that she could not use her personal cellular telephone inside the client’s residence.

Therefore, according to her affidavit, Kershner waited until she was out of the client’s home

before calling, and usually called from the interior of her vehicle “for the practical purposes of

avoiding outside noise.”

       {¶ 7}    High Point contends that Kershner’s affidavit contradicts her deposition

testimony because the deposition did not refer to the additional duty to call the company to

report that she had finished her last assignment. This is somewhat disingenuous. At her

deposition, Kershner testified:

               Q. So basically when you left Mr. Jenkins’ house your shift is over?

               A. Yes, and I have to call and report to High Point after we are done. I

       always called when I got in the car when I was done.



                  II. Summary Judgment Is Rendered Against Kershner

       {¶ 8}     The trial court rendered summary judgment in favor of the BWC and High

Point, holding that the injury to Kershner did not occur within the course and scope of her

employment. Specifically, the trial court stated that Kershner “was a fixed-situs employee

who was subject to the ‘coming and going’ rule, precluding her from participating in the

worker’s compensation fund.” The trial court further found that “the undisputed facts do not,

under the totality of circumstances test, show that there was a causal connection between
                                                                                           5


[Kershner’s] injury and her employment.” Kershner appeals.



III. Because Kershner Had Not Completed her Assigned Duties at the Time of her

Injury, She Was Injured in the Course of, and within the Scope of, Her Employment

       {¶ 9}    Kershner’s First, Second and Third Assignments of Error state:

               THE TRIAL COURT ERRED WHEN IT FOUND APPELLANT WAS

       SUBJECT TO THE “COMING AND GOING” RULE PRECLUDING HER

       FROM PARTICIPATION IN THE WORKERS’ COMPENSATION FUND.

               THE     TRIAL     COURT      ERRED       WHEN      IT    FOUND      THE

       UNDISPUTED         FACTS     DO    NOT,     UNDER      THE      TOTALITY      OF

       CIRCUMSTANCES TEST, SHOW A CAUSAL CONNECTION BETWEEN

       APPELLANT’S INJURY AND HER EMPLOYMENT.

               THE TRIAL COURT ERRED BY NOT CONDUCTING ANY

       ANALYSIS OR INQUIRY REGARDING WHETHER APPELLANT WAS

       WITHIN THE “ZONE OF EMPLOYMENT” AT THE TIME OF HER

       INJURY SINCE APPELLANT’S INJURY OCCURRED WITHIN THE

       “ZONE OF EMPLOYMENT” THEREBY ESTABLISHING CAUSAL

       CONNECTION BETWEEN HER INJURY AND HER EMPLOYMENT.

       {¶ 10} All of Kershner’s arguments are related to the issue of whether her injuries

occurred in the course of, and arising out of, her employment, and whether the trial court erred

in rendering summary judgment on that basis. Specifically, she contends that although she is

a fixed-situs employee, the trial court incorrectly applied the coming-and-going rule to her,
                                                                                            6


because she had not completed her work duties at the time of her injury. She further contends

that the trial court erred in its application of the “totality of the circumstances” exception to

the “coming-and-going” rule, and also erred by failing to apply the “zone of employment”

exception.

       {¶ 11} “We review decisions granting summary judgment de novo, which means that

we apply the same standards as the trial court.” GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio

App.3d 127, 2007-Ohio-2722, 873 N.E.2d 345, ¶ 16, (2d Dist.).             That standard is that

summary judgment may be granted to the moving party “‘pursuant to Civ.R. 56 if there are no

genuine issues of material fact remaining to be litigated, the moving party is entitled to

judgment as a matter of law, and reasonable minds can come to only one conclusion, and that

conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed

most strongly in his favor.’” Id., quoting Smith v. Five Rivers MetroParks, 134 Ohio App.3d

754, 760, 732 N.E.2d 422 (2d Dist. 1999).

       {¶ 12} In Ohio, “an injury sustained by an employee is compensable under the

Workers' Compensation Act only if it was received in the course of, and arising out of, the

injured employee's employment.” Fisher v. Mayfield, 49 Ohio St.3d 275, 276–277, 551

N.E.2d 1271 (1990). This standard must be liberally construed in favor of awarding benefits.

Id.

       {¶ 13}    The coming-and-going rule, cited by the trial court in its decision, is one used

in determining whether an injury occurs “in the course of, and arising out of, employment.”

MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66, 68, 572 N.E.2d 661 (1991). The rule

provides that, generally, “‘an employee with a fixed place of employment, who is injured
                                                                                         7


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.’” Mitchell v. Cambridge Home Health Care, Inc./PRI, 9th

Dist. Summit No. 24163, 2008-Ohio-4558, ¶ 9. (Citation omitted.) In determining whether

an employee is a fixed-situs employee and therefore within the coming-and-going rule, the

focus is on whether the employee “commences his or her substantial employment duties only

after arriving at a specific and identifiable work place designated by his employer * * * [and

that] focus remains the same even though the employee may be reassigned to a different work

place monthly, weekly, or even daily.” Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117,

689 N.E.2d 917(1998), paragraph one of the syllabus.           Therefore, “[d]espite periodic

relocation of job sites, each particular job site may constitute a fixed place of employment.”

Id.

       {¶ 14} In this case, the BWC and High Point argued that Kershner is a fixed-situs

employee. Kershner did not dispute that she was a fixed-situs employee. For purposes of

our analysis we will proceed under the assumption that she is a fixed-situs employee.

       {¶ 15} There are exceptions to the coming-and-going rule’s bar on workers’

compensation claims.       In Janicki v. Kforce.Com, Inc., 167 Ohio App.3d 572,

2006-Ohio-3370, 855 N.E.2d 1282, ¶ 18-22 (2d Dist.) this court noted:

               * * * The Supreme Court of Ohio has recognized that there are “rare

       circumstances” where, despite being classified as a fixed-situs employee, an

       employee can nevertheless demonstrate that she received an injury in the

       course of and arising out of her employment while traveling to or from work.
                                                                                    8


Ruckman [v. Cubby Drilling, Inc.] 81 Ohio St.3d [117] at 120, 689 N.E.2d 917

[1998]. In general, an employee's commute to a fixed work site is not within

the course of employment because “[i]n the normal context, an employee's

commute * * * bears no meaningful relation to his employment contract and

serves no purpose of the employer's business.” Id. at 121. “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.” Id.

         As for the “arising out of” element of R.C. 4123.01(C), the Supreme

Court has identified three limited tests for determining whether the required

causal connection exists: (1) the zone-of-employment exception, (2) the

special-hazard exception, and (3) the totality-of-the-circumstances exception.

* * *.

         The zone-of-employment exception renders an injury compensable if it

occurred within the zone of employment. MTD Products, Inc. [v. Robatin], 61

Ohio St.3d [66] at 69, 572 N.E.2d 661 [(1991)]. “Zone of employment” was

defined in Merz v. Indus. Comm. (1938), 134 Ohio St. 36, 39, 11 O.O. 414, 15

N.E.2d 632, as “the place of employment and the area thereabout, including the

means of ingress thereto and egress therefrom, under control of the employer.”

         ***

         The totality-of-the-circumstances test requires “primary analysis of the

following facts and circumstances: ‘(1) 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
                                                                                                9


       injured employee's presence at the scene of the accident.’ ” Ruckman, 81 Ohio

       St.3d at 122, 689 N.E.2d 917, quoting Lord v. Daugherty (1981), 66 Ohio St.2d

       441, 20 O.O.3d 376, 423 N.E.2d 96, syllabus; see Fisher v. Mayfield, 49 Ohio

       St.3d 275, 551 N.E.2d 1271.

       {¶ 16}    BWC and High Point argue that the rule precludes Kershner from

participating in the workers’ compensation fund because when she exited the client’s home,

she had completed her work for the day and was, effectively, beginning her commute home.

Kershner contends that the trial court erred in finding that the rule precluded her from

participating in the Workers’ Compensation Fund, because her duties were not concluded at

the time of the fall.    The trial court determined that Kershner’s claim failed under the

totality-of-the-circumstances   test.       But    the   trial   court   did   not   consider    the

zone-of-employment test, despite the fact that Kershner argued that test in her response to the

motions for summary judgment.

       {¶ 17} We begin with the totality-of-the-circumstances exception. We note that the

scene of the accident was proximate to the place of employment – Kershner parked on the

street right in front of the client’s residence. There is no evidence that High Point had any

control over the scene of the accident, but Kershner averred that the company required her to

call to report that she had finished her last assignment, and it did not allow her to do so within

the client’s residence. While Kershner might have been able to make the call from any place

outside the client’s residence, rather than from inside her vehicle, we see no practical

difference between the two spots in this case that would affect the analysis. There is nothing

in the record to indicate that High Point required Kershner to make the call while standing

outside her car in inclement weather. Therefore, the issue of control over the scene is less
                                                                                          10


important. Had Kershner driven away from the site, and later made the call, our conclusion

might be different. Furthermore, High Point arguably benefitted from Kershner’s presence at

the scene of the accident, in view of its requirement that she phone in when she finished the

assignment, and in view of the fact that she was sometimes given another assignment when

she called in.

        {¶ 18} We conclude that Kershner has established a genuine issue of material fact

with regard to this exception, making summary judgment inappropriate.

        {¶ 19} We next address the zone-of-employment exception, which is defined as the

place of employment and the area thereabout, including the means of ingress thereto and

egress therefrom under control of the employer. There is no evidence to support a finding

that High Point had control of the area outside of the client’s home. However, in Janicki,

supra, this court held that even though an employee was injured while crossing a public street,

which was not under the control of the employer, the street was within the zone of

employment because the employee could not reach her vehicle without crossing that street.

Id. at ¶ 38. We find this case analogous. Kershner indicated that she parked as close to the

client’s residence as possible, and used the most direct route to travel between her vehicle and

the house. Because her duties did not end upon exiting the home, Kershner was within the

zone of her employment when she fell.

        {¶ 20} High Point cites Mitchell, supra, as support for barring Kershner’s claim for

benefits. In Mitchell, the Ninth District Court of Appeals found that the zone of employment

for a home health aid does not include any areas outside of the client’s residence, including an

elevator used to exit the client’s apartment building, if that employee has no more duties to

carry out once she is outside the client’s apartment. Id. at ¶ 20. When we assume the truth
                                                                                           11


of the facts averred by Kershner, as we must for purposes of review of a summary judgment

rendered against her, we conclude that her case is distinguishable from Mitchell, because she

had a duty to perform after she left her client’s residence – she had a duty to call her employer

after first leaving her client’s residence.

        {¶ 21} As a final note, we are mindful that a fixed situs is the location where an

employee’s substantial duties begin. Ruckman, supra, at ¶ 119.        Although both the BWC

and High Point argue that any requirement to make a telephone call was not a substantial duty,

we conclude that this issue – especially given her averment that she could be given another

assignment during the call – is for a jury to determine.

        {¶ 22} We conclude that the trial court erred in its finding that the coming-and-going

rule barred Kershner’s claims and in rendering summary judgment against her. Accordingly,

Kershner’s assignments of error are sustained.



                                         III. Conclusion

        {¶ 23} All of Kershner’s assignments of error having been sustained, the judgment of

the trial court is Reversed, and this cause is Remanded for further proceedings consistent with

this opinion.

                                          .............

FROELICH, J., concurs.

HALL, J., dissenting:

        {¶ 24} I would affirm that part of the trial court’s grant of summary judgment that

concludes that there was no causal connection between the appellant’s injury and her

employment and that therefore the injury was not “arising out of” her employment.
                                                                                             12


       {¶ 25} To determine whether there is a causal connection between an employee's

injury and employment, we apply a “totality of the circumstances” approach. Fisher v

Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (1990). Appellant acknowledged she was

a fixed-situs employee. She was no longer on the premises. She was on a public street and not

engaged in any employment duty. Had she been placing the telephone call to her employer,

upon which she relies, when she slipped and fell on ice in the street, there could be a genuine

issue of material fact. But on this record, I would conclude that the fact that she was required

to check in with her employer at some time after leaving the patient’s home does not mean

that events occurring before the call are arising out of employment. Therefore, I dissent.

                                        .............



Copies mailed to:

Corey L. Kleinhenz
Rema A. Ina
Paul V. Disantis
Hon. Christopher Gee
