[Cite as Buck v. Melco, Inc., 185 Ohio App.3d 281, 2009-Ohio-6872.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              PAULDING COUNTY



BUCK SR.,

    APPELLEE,                                                     CASE NO. 11-09-06

    v.

MELCO, INCORPORATED,

    APPELLANT;

                                                                      OPINION
ADMINISTATOR, BUREAU OF
WORKERS' COMPENSATION,

    APPELLEE.



                Appeal from Paulding County Common Pleas Court
                            Trial Court No. CI-08-189

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                          Date of Decision: December 28, 2009




APPEARANCES:

         Thomas R. Sant, for appellant.

         Martha Joyce Wilson, for appellee.
Case No. 11-09-06


       SHAW, Judge.

       {¶1} Defendant-appellant, Melco, Inc. (“Melco”), appeals the June 5,

2009 judgment entry of the Paulding County Common Pleas Court granting

summary judgment in favor of plaintiff-appellee, Dennis Buck, finding that

Buck’s injury occurred in the course of and arose out of his employment with

Melco.

       {¶2} The facts relevant to this appeal are as follows. Buck was employed

by Melco as a heavy-equipment operator. In September 2005, he was hired to do

excavation at the Auglaize Quarry in Paulding County. This jobsite was located

approximately 70 miles from Buck’s home in Toledo. Buck customarily left his

home early to ensure that he arrived at the site on time. His shift was scheduled to

begin at 7:00 a.m. However, it was customary for the employees to enter the

quarry at 6:30 a.m., when the foreman arrived, to start the machines and be ready

to perform promptly at 7:00 a.m.

       {¶3} On October 5, 2006, Buck arrived at the Auglaize Quarry at

approximately 5:30 a.m. He parked his truck near the gate of the quarry where

Melco instructed its employees to park. Sometime between 5:45 a.m. and 6:00

a.m., the following series of events took place. Buck exited his vehicle to use the

port-a-john located adjacent to the designated parking area. As he left the port-a-

john to return to his vehicle, he was accosted by three men demanding money. An

altercation ensued and Buck was severely beaten. During the struggle, Buck



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sustained an injury to his shoulder and received lacerations on his face and

forearm from a switchblade knife used by one of the men. The men then robbed

Buck and left the site in a pickup truck. About ten minutes after the assault, some

of Buck’s co-workers arrived on the scene and assisted him. The foreman arrived

at approximately 6:30 a.m. and called law enforcement, who came to the scene

and prepared an incident report. Buck was admitted to the Paulding County

Hospital where the incident was documented and his injury was diagnosed as a left

shoulder contusion.

      {¶4} Buck filed an application with the Bureau of                   Workers’

Compensation and with the Industrial Commission of the State of Ohio for an

injury sustained in the course of and arising out of his employment with Melco.

Both the district hearing officer and the staff hearing officer for the Industrial

Commission allowed the claim, concluding that the injury occurred in the course

of and arose out of Buck’s employment.          Melco appealed to the Industrial

Commission, which refused to consider further appeal. Melco then appealed to

the Paulding County Court of Common Pleas pursuant to R.C. 4123.512.

      {¶5} The parties did not dispute the causal relationship between the

assault and Buck’s injured shoulder. The parties also entered a stipulation of facts

with several exhibits attached, including the incident report completed by law

enforcement. The only issue on appeal before the trial court was whether Buck’s




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injury occurred within the course of and arising out of his employment with

Melco. The parties filed cross motions for summary judgment.

      {¶6} On June 5, 2009, the trial court granted Buck’s motion for summary

judgment, finding that the injury was compensable, and consequently denied

Melco’s motion for summary judgment.

      {¶7} Melco now appeals, asserting a single assignment of error.

      The trial court erred in sustaining plaintiff-appellee’s motion for
      summary judgment and overruling defendant-appellant’s motion for
      summary judgment.

      {¶8} When reviewing a summary-judgment ruling made by a court of

common pleas from an appeal of a decision by the Industrial Commission, an

appellate court applies the same standard used to review any other summary-

judgment ruling. Conley-Slowinski v. Superior Spinning & Stamping Co. (1998),

128 Ohio App.3d 360, 363, 714 N.E.2d 991. The appellate court review of

summary judgment is made independently and without any deference to the trial

court. The standard of review for a grant of summary judgment is de novo.

Hasenfratz v. Warnement, 3rd Dist. No. 1-06-03, 2006-Ohio-2797, citing Lorain

Natl. Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 572 N.E.2d 198.

      {¶9} A grant of summary judgment will be affirmed only when the

requirements of Civ.R.56(C) are met. This requires the moving party to establish

(1) that there are no genuine issues of material fact, (2) that the moving party is

entitled to judgment as a matter of law, and (3) that reasonable minds can come to



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but one conclusion and that conclusion is adverse to the nonmoving party, who is

entitled to have the evidence construed most strongly in his favor. Civ.R.56(C);

see Horton v. Harwick Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196,

paragraph three of the syllabus.        Additionally, Civ.R.56(C) mandates that

summary judgment shall be rendered if the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and written

stipulations of fact show that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law.

       {¶10} In ruling on a summary-judgment motion, a court is not permitted to

weigh evidence or choose among reasonable inferences; rather, the court must

evaluate evidence, taking all permissible inferences and resolving questions of

credibility in favor of the nonmoving party. Jacobs v. Racevskis (1995), 105 Ohio

App.3d 1, 7, 663 N.E.2d 653.

       {¶11} In the sole issue on appeal, Melco argues that the trial court

incorrectly applied the law to the facts of this case when it granted Buck’s motion

for summary judgment. Specifically, Melco asserts that Buck’s injuries did not

occur “in the course of” and “arising out of” his employment with Melco. R.C.

4123.01(C) defines a compensable injury under the Worker’s Compensation Act

as the following:

       “Injury” includes 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.



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      {¶12} In order to participate in the state worker’s compensation fund, the

employee must prove that the injury occurred while “in the course of” and “arising

out of” the injured employee’s employment. Bralley v. Daugherty (1980), 61

Ohio St.2d 302, 303, 401 N.E.2d 448.          These two prongs are conjunctive,

requiring both to be satisfied before compensation is allowed. Fisher v. Mayfield

(1990), 49 Ohio St.3d 275, 277, 551 N.E.2d 1271. In applying this test, the

primary inquiry is “whether a ‘causal connection’ existed between an employee’s

injury and his employment either through the activities, the conditions or the

environment of the employment.” Bralley, 61 Ohio St.2d at 303. Moreover, as a

general rule, the worker’s compensation statute must be liberally construed in

favor of the employee. R.C. 4123.95; Fisher, 49 Ohio St.3d at 278.

      {¶13} To facilitate an analysis of the first prong, the Supreme Court of

Ohio summarized “in the course of” employment in the following manner:

      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.” Sebek
      v. Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693, 36 O.O.
      282, 76 N.E.2d 892, paragraph three of the syllabus. 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.

(Citations omitted.) Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117,

120, 689 N.E.2d 917.



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       {¶14} An assessment of this prong requires a consideration of factors such

as “time, place, and circumstances” of the injury to determine the existence of a

nexus between the employment and the activity causing the injury. Fisher, 49

Ohio St.3d at 277.

       {¶15} The second prong, “arising out of,” contemplates a determination as

to whether a sufficient causal connection between the injury and the employment

exists to warrant compensation. Id. The analysis under this prong requires a

totality-of-the-circumstances review of the incident. The Supreme Court of Ohio

put forth a framework of three basic factors to assist a court in determining

whether an injury arose out of the employee’s employment:

       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.

Lord v. Daugherty (1981), 66 Ohio St.2d 441, 444, 423 N.E.2d 96. Because

worker’s compensation cases are intensely fact specific, a flexible and analytically

sound approach is preferable to rigid rules that can lead to unsound and unfair

results. Fisher, 49 Ohio St.3d at 280.

       {¶16} In applying the above two-pronged test to the instant case, Melco, in

its brief and in oral argument, urges this court to find that Buck was not engaged

in an activity required by his employment and did not serve any benefit to Melco




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because the injury occurred more than an hour prior to the scheduled

commencement of Buck’s workday.

       {¶17} Based on the parties’ stipulation and their respective motions for

summary judgment with attached exhibits, the following facts emerge concerning

Buck’s arrival time. Buck commuted 70 miles each day to the quarry, a site he

reported to daily for over a year. Other Melco employees noted that Buck was

typically the first employee to arrive at the site and that Buck parked his vehicle in

the same space each day in the area designated for Melco employees. Also, it was

customary for employees to arrive at least 30 minutes before the start of the 7:00

a.m. shift to allow the machine operators to enter the quarry to warm up the

machines at 6:30 a.m. Moreover, on the day of the incident at issue, other Melco

employees arrived only minutes after the assault occurred.

       {¶18} When applying these facts to the two-pronged test to this case, it is

apparent that a number of genuine issues of material fact remain unanswered in

the record. For example, the “in course of” element is satisfied if the worker is

injured in the pursuit or undertaking consistent with the contract of hire and that in

some logical manner pertains to or is incidental to the employment. Ruckman, 81

Ohio St.3d at 120. Therefore, an essential inquiry is whether Buck’s early arrival

placed him outside the course of his employment with Melco.

       {¶19} In this case, despite the parties’ stipulated use of the word

“customary,” it is unclear whether Melco employees voluntarily arrived at least 30



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minutes prior to their shift or whether early arrival to prepare the machines was a

required duty of their employment. Therefore, it cannot be readily ascertained

from the term “customary” whether some employees were “encouraged” or

“expected” by Melco to arrive early and perform preparatory activities—or

whether the practice of early arrival was purely voluntary for the convenience or

benefit of the employees as opposed to the convenience or benefit of Melco.

       {¶20} In addition, the arrival of Buck’s co-workers shortly after the assault

indicates that Buck’s early arrival was perhaps not an atypical practice among

Melco employees. However, even if an early arrival was not “required” by Melco,

the fact that other Melco employees, including the site foreman, were aware that

Buck was consistently the first to arrive at the site raises the issue whether Melco

acquiesced to Buck’s early arrival to the site by not protesting the daily occurrence

over a year’s time. Simply put, we believe the fact of Buck’s “customary” early

arrival at the jobsite, standing alone, is an insufficient basis for a determination as

a matter of law that Buck was “within the course of” his employment at the time

of the assault.   On the contrary, a more complete resolution of the factual

circumstances surrounding the employees’ early arrivals is essential in

determining whether the timing of Buck’s arrival at the jobsite was consistent with

his contract for hire and logically related to his employment with Melco, and thus

whether Buck was indeed in the course of his employment when his injury

occurred.



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       {¶21} Similarly, the issue of Buck’s early arrival to the jobsite also raises

issues of material fact with regard to the “arising out of” portion of our analysis.

Specifically, issues arise with regard to the third factor of Lord, i.e., assessing

whether Melco received a benefit from Buck’s presence at the scene. Clearly,

neither party disputes that having the machine operators onsite 30 minutes before

the shift begins to prepare the equipment for excavation provides a distinct benefit

to Melco.

       {¶22} The parties stipulated that Buck’s practice of arriving early stemmed

from the fact that he commuted 70 miles each day and therefore left his home

early to ensure he arrived to the jobsite on time. On one hand, it is difficult to

imagine that Buck reaped any personal benefit from his presence at a quarry

located off of a rural county road at 5:45 a.m. other than to ensure that he arrived

to his place of employment on time. Moreover, ensuring that he arrived on time

benefited his employer by having an employee readily available when the foreman

arrived. On the other hand, a question naturally arises as to whether, under the

totality of circumstances and employer expectations, an employee’s presence a full

one and a half hour before the formal 7:00 a.m. start time still falls within the

“benefit the employer received” language of Lord. In view of the various facts

discussed above concerning the known and customary practices of the employees

in this case, resolution of this question is likewise not particularly susceptible to a

determination as a matter of law.



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        {¶23} The remaining two considerations under the Lord test involve the

proximity of the scene of the incident to the place of employment and the degree

of control the employer had over the scene. Once again, the parties’ factual

stipulations to certain facts are generally unhelpful in applying the Lord analysis to

this case because none of the stipulated facts appear to address either of these

considerations.

        {¶24} For example, as to the factor of proximity between the parking area

where the assault occurred and the quarry, there is no indication exactly how close

the two locations were to one another. Moreover, a review of the record before us

reveals inconsistent facts concerning Melco’s control over the scene. The quarry

was wholly owned by a customer of Melco’s. Melco also denies it exerted any

control over the premises where the assault occurred, an assertion that is primarily

based on the fact that the parking area was located off a county road that was

accessible to the general public. However, Buck’s injury occurred in the area

where he and other employees were instructed to park by Melco each day for the

entire year Melco had been conducting business at the quarry. Notably, both

parties assert that Melco’s control, or absence thereof, is determinative in

supporting their respective arguments for granting or denying compensation to

Buck.

        {¶25} Nevertheless, questions still remain regarding the nature of the area

where Buck was injured. When interviewed by law enforcement, the site foreman,



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Eric Sneigowski, stated that all Melco employees met at the site prior to beginning

their shift. However, beyond being a place to park and a staging site to gather the

crew prior to commencing the shift, there is no information in the record as to the

nature of this area as it relates to the day-to-day activities at the jobsite. As a

result, despite both parties’ assertions that no genuine issues of material fact

remain, the facts necessary to determine whether Melco exerted any control over

the injury site, and if so to what degree, are not in the record.

       {¶26} The degree of control Melco had over the premises where the injury

occurred is crucial in another respect.           It supplies an alternate theory of

compensation under the “zone of employment” rule. Both parties rely on this

alternative theory of compensability to bolster their respective motions for

summary judgment. Generally, an employee with a fixed place of employment,

who is injured while travelling to and from the place of employment, is not

entitled to compensation under the worker’s compensation fund because there is

no causal connection between the injury and employment. MTD Prods., Inc. v.

Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661. However, there is an

exception to the general rule barring compensation when an injury occurs in the

zone of employment.

       {¶27} The zone of employment is defined as “the place of employment and

the area thereabout, including the means of ingress thereto and egress therefrom,

under the control of the employer.” (Emphasis added.) Janicki v. Kforce.com,



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167 Ohio App. 3d 572, 579, 2006-Ohio-3370, 855 N.E.2d 1282. The concept of

the zone of employment has been further clarified through case law in situations

similar to this one when an employee’s injury occurred in an area used by the

public, but the premises in question was the only point of access to the place of

employment.

       If the area is under the employer's control and the street is the sole
       access route to the place of employment, the employee is within this
       “zone of employment.” Bralley v. Daugherty (1980), 61 Ohio St.2d
       302. Furthermore, even if the street is not under the control of the
       employer, the employee is within the “zone of employment” if the
       employee could not reach the plant entrance from the employee
       parking lot without crossing the public street. Baughman v. Eaton
       Corp. (1980), 62 Ohio St.2d 62, 402 N.E.2d 1201.

Meszaros v. Legal News Publishing Co. (2000), 138 Ohio App.3d 645, 647, 742

N.E.2d 158.

       {¶28} Even though Buck’s location of employment was subject to change

depending upon where Melco was performing excavation, he is considered a

fixed-situs employee and subject to the general rule. See Ruckman, 81 Ohio St.3d

117, paragraph one of the syllabus (holding that a fixed-situs employee may be

reassigned to a different work place, monthly, weekly, or even daily and despite

periodic reassignments of location, each particular jobsite may constitute a fixed

location).

       {¶29} However, Buck argues that because Melco instructed its employees

to park on the premises, it constitutes the “zone of employment” and an injury




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occurring within that zone is compensable. On the contrary, Melco maintains that

because the premises were accessible to the general public, it was more akin to a

public highway and therefore did not constitute the jobsite.         Based on this

assertion, Melco argues that Buck was still in his commute and en route to the

jobsite when he was attacked and therefore subject to the general rule barring

compensation.

       {¶30} In sum, despite the parties’ stipulation to certain facts, we find that

there still remain genuine issues of material fact as to all of the foregoing issues

that we believe are crucial to the determination of whether this injury was

compensable under the law pertaining to workers compensation.

       {¶31} Based on the foregoing, we find summary judgment to be

inappropriate for either party in this case. Therefore, the June 5, 2009 judgment

entry of the Paulding Court of Common Pleas granting Buck’s motion for

summary judgment is reversed. However, the decision of the trial court to deny

summary judgment on the part of Melco is affirmed. To the same extent, the

assignment of error is sustained as to the summary judgment awarded to Buck and

overruled as to the denial of summary judgment for Melco, and the matter is

remanded to the trial court for further proceedings consistent with this opinion.

                                                          Judgment affirmed in part
                                                              and reversed in part,
                                                              and cause remanded.

       PRESTON, P.J., and ROGERS, J., concurs.



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