STIVISON, APPELLANT, v. GOODYEAR TIRE & RUBBER COMPANY ET AL., APPELLEES.

  [Cite as Stivison v. Goodyear Tire & Rubber Co. (1997), 80 Ohio St. 3d 498.]

Workers’ compensation — Employee assaulted and injured by fellow employee at

      restaurant near workplace — Injury not compensable when not sustained

      “in the course of” employment.

(No. 96-1411 — Submitted September 10, 1997 — Decided December 31, 1997.)

      APPEAL from the Court of Appeals for Hocking County, No. 95CA13.

      After finishing a shift at the Goodyear Tire & Rubber Co. (“Goodyear”)

plant, appellant, Richard Stivison, stopped at a nearby restaurant where he was

assaulted and injured by his fellow Goodyear employee Jeff McCormick. The

impetus for the assault was a grudge McCormick bore against Stivison for

informing their supervisor that McCormick had been leaving work early, an

infraction of Goodyear’s rules.

      Stivison filed a workers’ compensation claim for the injuries sustained in

the assault. Goodyear opposed the allowance of the claim. Although the district

hearing officer agreed with Goodyear, the regional board of review allowed the

claim on appeal, and the Industrial Commission affirmed.            Goodyear then

appealed the commission’s order to common pleas court and both parties moved

for summary judgment. The trial court granted summary judgment to Goodyear

and the appellate court affirmed.

      The cause is now before this court pursuant to the allowance of a

discretionary appeal.

                              __________________

      Stewart Jaffy & Associates, Stewart R. Jaffy and Marc J. Jaffy, for appellant.

      Vorys, Sater, Seymour & Pease and Joseph A. Brunetto, for appellee

Goodyear Tire & Rubber Co..
                              __________________

      COOK, J. 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.”

      In Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 551 N.E.2d 1271, we

reaffirmed our interpretation of “in the course of” as involving the time, place, and

circumstances of the injury and “arising out of” as involving causal connection

between the injury and the injured person’s employment. Id. at 277-278, 551

N.E.2d at 1274. We also “expressly recognize[d] the conjunctive nature of the

coverage formula of ‘in the course of and arising out of’ the employment. * * *

[A]ll elements of the formula must be met before compensation will be allowed.”

Id. at 277, 551 N.E.2d at 1274. Stivison argues that his injury is compensable

solely because of a causal connection with his employment.           This argument

ignores half of the coverage formula recognized in Fisher by failing to

acknowledge the necessity for temporal, spatial, and circumstantial connection.

      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.



                                         2
      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), 66 Ohio St.2d 441, 20 O.O.3d 376, 423

N.E.2d 96, supplies the necessary standard for determining sufficiency of causal

relation:

      “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.1 Therefore, the causal relation that existed

between Stivison’s employment and his injury does not satisfy any of the

enumerated elements of the Lord totality of the circumstances test. Because there

are no additional facts or circumstances compelling a finding of causation,

Stivison has failed to establish the requisite causal connection.

      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



                                          3
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., 49

Ohio St.3d at 280, 551 N.E.2d at 1276. Some of these exceptions allow recovery

for off-site injuries (for example, the exception for employer-sponsored

recreational activity cases and the “zone of employment” and “special hazard”

exceptions to the “coming and going” cases), but Stivison does not attempt to

argue that his injury falls within an established exception.       Therefore, cases

allowing recovery for off-site injuries based on established exceptions are

inapposite here.

      Stivison also argues that Ryan v. Connor (1986), 28 Ohio St.3d 406, 28

OBR 462, 503 N.E.2d 1379, which involves a heart attack suffered away from

business premises, is an example of compensation for an off-site injury. This

argument fails since the heart attack was compensable only because the stress

which resulted in the attack was suffered at work, just as an injury resulting from

workplace exposure to dangerous substances is compensable regardless of where

the employee is when symptoms appear. See, e.g., State ex rel. Burnett v. Indus.

Comm. (1983), 6 Ohio St.3d 266, 6 OBR 332, 452 N.E.2d 1341. Stivison’s injury

is not analogous to the heart attack in Ryan because there was no workplace effect

on Stivison comparable to the stress supporting the compensability of the heart

attack.

      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




                                         4
exception, we hereby affirm the appellate court’s judgment affirming summary

judgment.

                                                                Judgment affirmed.

      MOYER, C.J., PFEIFER and LUNDBERG STRATTON, JJ., concur.

      DOUGLAS, J., dissents.

      RESNICK and F.E. SWEENEY, JJ., dissent.

FOOTNOTE:

1.    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 McCormick’s absence from work.                This

argument arises from a misunderstanding of the benefit required; the test is

whether there is a benefit to the employer from the employee’s presence at the

scene of the accident. Stivison also claims an “additional” benefit to Goodyear

was that he intended to take food from the restaurant back to employees on the

night shift, as well as cashing his paycheck and eating a meal. Goodyear did not

ask Stivison to purchase and deliver food, and there is no reason to suppose

Stivison’s delivery of food was a benefit to Goodyear.

                               __________________

      ALICE ROBIE RESNICK, J., 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



                                         5
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), 92 Ohio St. 434, 450, 111 N.E. 299, 303, overruled in part on other

grounds, State ex rel. Crawford v. Indus. Comm. (1924), 110 Ohio St. 271, 143

N.E. 574.

      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.’ ”



                                         6
      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

applies the “totality of circumstances” test set forth in Lord v. Daugherty (1981),

66 Ohio St.2d 441, 20 O.O.3d 376, 423 N.E.2d 96, at the syllabus, to the place and

circumstances surrounding the assault itself, rather than to the event or incident

which precipitated the assault.

      “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’




                                           7
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 words themselves.”

(Emphasis sic; footnote omitted.) 1 Larson, supra, at 3-10 to 3-11, Section 6.60.

      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



                                          8
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), 49 Ohio St.3d 275, 278, 551 N.E.2d 1271, 1274. This

is precisely the approach that the Industrial Commission took when it determined

that considering R.C. 4123.95 and the totality of the sequence of events, the

assault occurred “in the course of” and “arising out of” appellant’s employment.

      In Fisher, supra, 49 Ohio St.3d at 277, 551 N.E.2d at 1274, the court

announced:

      “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:




                                        9
      “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

302, 15 O.O.3d 359, 401 N.E.2d 448.]           The Ohio Supreme Court expressly

acknowledged the conjunctive nature of the coverage formula in Fisher v.

Mayfield.”

      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, 49 Ohio St.3d at 277, 551 N.E.2d at 1274, and then proceeded to

apply each element in succession.

      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.,

49 Ohio St.3d at 281, 551 N.E.2d at 1277. The fact that Fisher applied each prong

of the coverage formula separately under the factual pattern before it does not

mean that the court opted for a strict bifurcation of the coverage formula in all

cases. To the contrary, the court specifically warned that “no one test or analysis

can be said to apply to each and every factual possibility. Nor can any one factor

be considered controlling. Rather, a flexible and analytically sound approach to




                                          10
these cases is preferable. Otherwise, the application of hard and fast rules can lead

to unsound and unfair results.” Id., 49 Ohio St.3d at 280, 551 N.E.2d at 1276.

      In a particularly poignant analysis, the Court of Appeals for Williams

County, in Fletcher v. Northwest Mechanical Contr., Inc. (1991), 75 Ohio App.3d

466, 470-471, 599 N.E.2d 822, 825, fn. 1, explained as follows:

      “ ‘[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, 49 Ohio St.3d at

277, 551 N.E.2d at 1274, made reference to Strother v. Morrison Cafeteria

(Fla.1980), 383 So. 2d 623, as having ‘* * * embarked on a well-reasoned analysis

as to whether that court had developed inconsistent constructions of the basic

coverage formula * * *.’ It was noted by the court in Strother, supra, at 625, that

it had, in some decisions, bifurcated the elements of ‘arising out of’ and ‘in the

course of’ and in other cases merged them. That court held in favor of bifurcation,

but found no inconsistency. It found ‘* * * the construction of “arising out of and

in the course of employment,” proposed by Larson * * * to be reasonable and

conducive to the basic purposes of the workers' compensation act.’ Id. at 628.

The Florida Supreme Court went on to state that Larson:

      “ ‘* * * suggests that the more reasoned approach, consistent with the goals

of workers' compensation acts, is not to apply these concepts entirely independent

of each other but rather to view them as parts of a single test of work

connectedness where deficiencies in the strength of one factor may, in some cases



                                         11
be made up by the strength in the other.’ Id. at 624; see, also, 1 Larson, supra, 3-

3, Section 6.10 and 1A Larson, supra, 5-438, Sections 29.00 and 29.10.

      “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.,

49 Ohio St.3d at 278-279, 551 N.E.2d at 1275. Lord involved a situation in which

‘there was no fixed employment situs, due to the nature of decedent's occupation *

* *.’ Id., 66 Ohio St.3d at 442, 20 O.O.3d at 377, 423 N.E.2d at 97. Implicitly,

therefore, Lord dealt with the ‘arising out of’ aspect of the two-prong test. Yet

Lord, in reciting the ‘totality of the facts and circumstances’ relied on Bralley,

supra. Bralley, in turn, was a ‘zone of employment’ case, which would involve,

according to Fisher, supra, an analysis as to whether the employee is ‘in the

course of’ his employment. The ‘totality of circumstances’ test, therefore, arose

by virtue of application to both prongs of the requirement that the injury be

‘received in the course of, and arising out of, the injured employee’s employment.’

As further illustration, both Bralley, supra, 61 Ohio St.2d at 303, 15 O.O.3d at

360, 401 N.E.2d at 449, and Lord, supra, 66 Ohio St.2d at 444, 20 O.O.3d at 378,

423 N.E.2d at [98], relying on the very same cases, stated the respective issue to

be ‘* * * 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.’ It is apparent that the same factors have arisen with reference to

both prongs of the test. In fact, although the court in Fisher relegated Lord to the

‘arising out of’ prong of the test, it nevertheless employed some of the Lord

factors to its analysis of whether appellant was ‘in the course of’ her employment.




                                         12
A strict application of the bifurcated prongs of ‘in the course of’ and ‘arising out

of’ is, therefore, not only potentially unjust, but is clearly unworkable.”

      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

explains,   the   total   “quantum”     of    work-connection    should   amount   to

compensability, “in the case of a foreman who angers a subordinate during

working hours by firing him and later, while asleep on the sand at a beach the

following Sunday, is assaulted by the disgrunted [sic] employee. Yet insistence on

independent satisfaction of the ‘course’ and ‘arising’ tests results in an almost

insuperable barrier to compensation for this unquestionably work-connected

injury.” Id. at 5-483, Section 29.21.

      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), 61 Ohio St.3d 66, 572 N.E.2d 661;

Littlefield v. Pillsbury Co. (1983), 6 Ohio St.3d 389, 6 OBR 439, 453 N.E.2d 570;




                                             13
Lord; Bralley, supra; Kohlmayer v. Keller (1970), 24 Ohio St.2d 10, 53 O.O.2d 6,

263 N.E.2d 231; Indus. Comm. v. Barber (1927), 117 Ohio St. 373, 159 N.E. 363.

      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.

      Moreover, in the case of an off-premises assault, the strict view allows the

vagaries of the attacker to emerge as the decisive factor in determining whether

the injury was received in the course of employment. In the instant case, the

majority denies compensation in part because claimant was assaulted at Jack’s

Steakhouse under circumstances which, at that time, put him beyond the reach of

the “zone of employment,” “special hazard,” and “incidental activity” exceptions.

Following this reasoning, claimant’s injuries would be compensable had



                                         14
McCormick been considerate enough of claimant’s compensation position to have

assaulted him in Goodyear’s parking lot, Marlow v. Goodyear Tire & Rubber Co.

(1967), 10 Ohio St.2d 18, 39 O.O.2d 11, 225 N.E.2d 241, or while he was on his

way to work on a street maintained by Goodyear, Indus. Comm. v. Barber, supra,

or on a public street between the company parking lot and the plant, Baughman v.

Eaton Corp. (1980), 62 Ohio St.2d 62, 16 O.O.3d 45, 402 N.E.2d 1201, or

crossing a railroad track immediately adjacent to the plant’s entrance, Indus.

Comm. v. Henry (1932), 124 Ohio St. 616, 180 N.E. 194, or while claimant was

attending a company-sponsored picnic, Kohlmayer v. Keller (1970), 24 Ohio St.2d

10, 53 O.O.2d 6, 263 N.E.2d 231, or in some way promoting the employer’s

interests, Indus. Comm. v. Davison (1928), 118 Ohio St. 180, 160 N.E. 693;

Outland v. Indus. Comm. (1940), 136 Ohio St. 488, 17 O.O. 92, 26 N.E.2d 760.

      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), 100 Ohio St. 218, 125 N.E. 662, Pora was

employed as a molder’s helper and was directed by his supervisor to go to another

part of the plant and obtain an electric riddle. The electric riddle was being used

by another molder and his helper.       Pora and the other helper argued over

possession of the implement, and the second helper struck Pora over the head with

a shovel. Pora died the following day, and his widow filed a claim with the

Industrial Commission.

      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



                                        15
(1869), 19 Ohio St. 110. In Wetmore, the plaintiff was a passenger on defendant’s

train.     The plaintiff apparently used some abusive language toward one of

defendant’s employees, who thereupon assaulted and beat the plaintiff with a

hatchet.     Plaintiff sued the employer on the basis of respondeat superior, or

vicarious liability. The court held that jury instructions had been misleading and

that the defendant would not be liable if its employee had acted out of personal

animosity and, therefore, not in the course of his employment.

         The court in Pora held in claimant’s favor and distinguished Wetmore as

follows:

         “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., 100 Ohio St. at 221-

222, 125 N.E. at 663.

         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



                                           16
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), 148 Ohio St. 693, 36 O.O. 282, 76 N.E.2d

892, overruled in part, Johnson v. Indus. Comm. (1955), 164 Ohio St. 297, 58 O.O.

90, 130 N.E.2d 807; Malone v. Indus. Comm. (1942), 140 Ohio St. 292, 23 O.O.

496, 43 N.E.2d 266, overruled in part, Village v. Gen. Motors Corp. (1984), 15

Ohio St.3d 129, 15 OBR 279, 472 N.E.2d 1079; Indus. Comm. v. Bartholome

(1934), 128 Ohio St. 13, 190 N.E. 193, overruled in part by Johnson, supra; Spicer

Mfg. Co. v. Tucker (1934), 127 Ohio St. 421, 188 N.E. 870; Indus. Comm. v.

Helriggle (1933), 126 Ohio St. 645, 186 N.E. 711; Indus. Comm. v. Palmer

(1933), 126 Ohio St. 251, 185 N.E. 66; Indus. Comm. v. Burckard (1924), 112

Ohio St. 372, 147 N.E. 81; Indus. Comm. v. Roth (1918), 98 Ohio St. 34, 120 N.E.

172. On the other hand, compensation had been denied for a heart condition and

cerebral hemorrhage resulting from emotional distress, anxiety, or worry.

Szymanski v. Halle’s Dept. Store (1980), 63 Ohio St.2d 195, 17 O.O.3d 120, 407

N.E.2d 502; Toth v. Std. Oil Co. (1953), 160 Ohio St. 1, 50 O.O. 476, 113 N.E.2d

81.

      This limitation was removed in Ryan v. Connor (1986), 28 Ohio St.3d 406,

28 OBR 462, 503 N.E.2d 1379. The court overruled Szymanski and Toth, supra,

and held:




                                       17
      “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., 28 Ohio St.3d at 408, 28 OBR at 464, 503 N.E.2d at

1381.2

      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), 119 N.J.Super. 20, 289

A.2d 558, affirmed (1975), 122 N.J.Super. 144, 299 A.2d 423, claimant, a truck

driver, was splashed by jet fuel during work, which permeated his uniform and

body with fumes. After his workday was done, he drove home and lit a match to

burn some trash, whereupon he caught fire. The employer argued that the accident

did not arise in the course of employment, since the actual burn injuries occurred

at claimant’s home.

      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., 119 N.J.Super. at 27, 289 A.2d at 561. The court noted

the case of Secor v. Penn Service Garage (1955), 35 N.J.Super. 59, 113 A.2d 177,

affirmed (1955), 19 N.J. 315, 117 A.2d 12, which presented similar facts, but

where the match was struck at the place of employment. Compensation in that

case was allowed. The court in Daniello declined to reach a different result on the

basis of where the match was struck, explaining that “the recovery in one and the



                                        18
lack of recovery in the other can only be distinguished on factitious or synthetic

grounds which may only be considered as illusory and without substance.” Id.,

119 N.J.Super. at 28, 289 A.2d at 562. See, also, Lujan v. Houston Gen. Ins. Co.

(Tex.1988), 756 S.W.2d 295.

      The difference between the facts in Secor and the facts in Daniello is the

same difference that prevails between the facts in Pora and in the case sub judice.

It is no less “factitious or synthetic” to allow recovery in Pora and deny recovery

here, on the basis of where the assault was perpetrated, than it is to allow recovery

in Secor and deny recovery in Daniello, on the basis of where the match was

struck.

      In Joy v. Florence Pipe Foundry Co. (1960), 64 N.J.Super. 13, 165 A.2d

191, the facts were similar to those presented in Toth, supra, i.e., a cerebral

hemorrhage resulting from workplace anxiety and stress. In finding the injury

compensable, the court in Joy explained:

      “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., 64 N.J.Super. at 22, 165 A.2d at 196.

      In Graybeal v. Montgomery Cty. Bd. of Supervisors (1975), 216 Va. 77, 216

S.E.2d 52, a prosecutor was injured by the explosion of a bomb left at his home by

an individual whom the prosecutor had tried five years and eight months

previously. The court held the injury compensable, pointing out that “[i]n the

realities of the present case, the course from prosecution to desire-for-revenge to



                                         19
injury was unbroken, constituting a single work-connected incident.” Id., 216 Va.

at 80, 216 S.E.2d at 54-55.

      Bearshield v. Gregory (S.D.1979), 278 N.W.2d 166, involved a set of facts

somewhat similar to Graybeal, but the target was a police officer. The decedent

was murdered while on vacation in revenge for his actions undertaken in the

course of his duties as a police officer. Much like the court of appeals in the case

sub judice, the hearing examiner had concluded that, despite the patent inequity,

he could not interpret South Dakota case law so as to conclude that decedent was

in the course of his employment while on vacation and performing no task related

to his employment.

      The South Dakota Supreme Court, holding in claimant’s favor, explained as

follows:

      “We agree with the hearing examiner that the application of the rule as it is

presented in this Court’s previous decisions would seem to preclude recovery by

[claimant]. The cases cited and discussed above, however, are distinguishable

from the instant case because in the above cases, the ‘occurrence’ of the injury

coincides with the ‘arising’ of the injury, as is the case in nearly all worker’s

compensation injuries. This prevalent coincidence tends to lull us into equating

the two words. The instant case, however, brings them into sharp contrast. The

actual injury ‘occurred’ on July 26, 1976, but it cannot be said that it ‘arose’ at that

time. The actual occurrence was merely the culmination of something that had

been ‘arising’ for quite some time in the course of decedent’s employment and was

triggered by his performance of his duty in keeping [the murderer’s] mother in jail.

Thus, it seems that the injury indeed ‘arose in the course of’ decedent’s

employment.” Id., 278 N.W.2d at 169.




                                          20
         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., 278 N.W.2d at 170.

         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, 49 Ohio St.3d at 280, 551 N.E.2d at 1276.

The concept of workers’ compensation coverage, in its most basic and

fundamental form, is unitary, not dual, and where inquiry is made as to the

“course” or “arising” aspects of the injury, it is not for the purpose of determining

those questions in the first instance, but only to ensure that compensation is

limited to those employees whose injuries are truly work-connected. See, e.g.,

Rogers v. Allis Chalmers Mfg. Co. (1949), 85 Ohio App. 421, 424-425, 40 O.O.

293, 295, 88 N.E.2d 234, 236, affirmed (1950), 153 Ohio St. 513, 41 O.O. 514, 92

N.E.2d 677; Anderson v. Falcon Drilling Co. (Okla.1985), 695 P.2d 521, 526-527.

It is patently unjust and inconsistent with the beneficent purposes of workers’

compensation to bifurcate the injury into two separate events of cause and

manifestation and then respectively apply each prong of the coverage formula

thereto. “[T]he injurious incident (whether a quarrel or a work strain or a sliver-

in-the-eye episode) ‘from origin to ending must be taken to be one,’ [and] it should

be sufficient that the origin of this single unit of injury lies within the bounds of

employment, whether the ending, in the form of the actual impact, falls within

those bounds or not.” (Citation omitted.) 2 Larson, supra, at 5-517, Section

29.22.



                                         21
      In light of all of the foregoing, it is my opinion that the holding in this case

should be as follows:

      “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), 77 Ohio St.3d 284, 312-313, 673 N.E.2d 1311, 1332.




                                         22
      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.

      F.E. Sweeney, J., concurs in the foregoing dissenting opinion.

FOOTNOTE:

2.    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:

      “(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).




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