[Cite as Margello v. Parachute & Special Advocates for Children, 2013-Ohio-1106.]



                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                           BUTLER COUNTY




JEAN M. MARGELLO,                                      :
                                                                   CASE NO. CA2012-08-168
        Plaintiff-Appellant,                           :
                                                                           OPINION
                                                       :                    3/25/2013
   - vs -
                                                       :

PARACHUTE & SPECIAL ADV.                               :
FOR CHILDREN, et al.
                                                       :
        Defendants-Appellees.
                                                       :



            CIVIL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
                              Case No. CV2011-05-1746



Thomas M. Tepe, 526 Wards Corner, Suite A, Loveland, Ohio 45140, for plaintiff-appellant

Kevin P. Jones, 8035 Hosbrook Road, #200, Cincinnati, Ohio 45236, for plaintiff-appellant

Frost Brown Todd, LLC, Gerron L. McKnight, 201 East Fifth Street, Suite 2200, Cincinnati,
Ohio 45202, for defendant-appellee, Parachute & Special Adv. for Children

Barbara L. Barber, 1600 Carew Tower, 441 Vine Street, Cincinnati, Ohio 45202, for
defendant-appellee, Steve Buehrer, Administrator, Bureau of Workers' Compensation



        S. POWELL, J.

        {¶ 1} A volunteer denied workers' compensation benefits argues on appeal that she

was an "employee" eligible for benefits because the organization received value from her
                                                                      Butler CA2012-08-168

volunteer services and exerted substantial control over its volunteers. We find the volunteer

does not qualify as an "employee" for purposes of workers' compensation and affirm the

grant of summary judgment to the organization and the workers' compensation bureau.

       {¶ 2} Jean M. Margello applied for workers' compensation benefits after she claimed

she sustained injuries in a fall while visiting a client's home as a volunteer court-appointed

special advocate for Parachute & Court-Appointed Special Advocates for Children, Butler

County (Parachute). Margello was denied benefits by the Bureau of Workers' Compensation

(BWC). She appealed to the Butler County Common Pleas Court, who subsequently granted

summary judgment to Parachute and BWC.             On appeal, Margello presents a single

assignment of error for our review.

       {¶ 3} Assignment of Error:

       {¶ 4} GIVEN THE REQUIREMENTS OF HER POSITION, THE LOCATION WHERE

INJURY OCCURRED, AND CONSTRUING THE EVIDENCE MOST STRONGLY IN FAVOR

OF THE NON-PREVAILING PARTY, THE MOTION FOR SUMMARY JUDGMENT WAS

GRANTED IN ERROR BY THE TRIAL COURT AND SHOULD BE REVERSED AND/OR

REMANDED FOR DETERMINATION OR FINAL JUDGMENT. [sic]

       {¶ 5} Margello argues the trial court erred when it found that she was not an

"employee" for workers' compensation purposes and granted summary judgment to

Parachute and BWC on that basis.

       {¶ 6} Summary judgment is appropriate under Civ.R. 56, when no genuine issues of

material fact remain 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. Grizinski v. Am. Express Fin. Advisors, Inc., 187 Ohio App.3d 393,

2010-Ohio-1945, ¶ 14 (12th Dist.). This court's review of a trial court's ruling on a summary

judgment motion is de novo. Id.
                                             -2-
                                                                       Butler CA2012-08-168

       {¶ 7} Margello admits she received no compensation or benefits for her volunteer

services to Parachute. However, Margello argues that a determination of whether she is an

"employee" for worker compensation purposes should be based on such factors as

Parachute receiving the benefit of her advocating for clients, and the substantial control

Parachute exerted over her with regard to the training she received and the policies and

procedures she was required to follow.        Margello asks this court to use the factors

enumerated in R.C. 4123.01(A)(1)(c) to find that Parachute exerted the requisite control over

Margello as an employee.

       {¶ 8} Under the workers' compensation chapter of the revised code, R.C. 4123.54

states, in part, that injured employees are entitled to receive specific compensation for loss

sustained on account of the injury or occupational disease.

       {¶ 9} R.C. 4123.01 defines "employee" under four categories, which is summarized

as follows:

       {¶ 10} Under R.C. 4123.01(A)(1)(a), an employee includes every person in the service

of the state, or of any county, municipal corporation, including regular members of lawfully

constituted police and fire departments of municipal corporations and townships, whether

paid or volunteer, under any appointment or contract of hire, express or implied, oral or

written.

       {¶ 11} According to R.C. 4123.01(A)(1)(b), an employee is every person in the service

of any person, firm, or private corporation, including any public service corporation, that

employs one or more persons regularly in the same business or in or about the same

establishment under any contract of hire, express or implied, oral or written, including aliens

and minors, household workers who earn a certain amount.

       {¶ 12} Employee is defined by R.C. 4123.01(A)(1)(c) as every person who performs

labor or provides services pursuant to a construction contract, as defined in R.C. 4123.79, if
                                              -3-
                                                                      Butler CA2012-08-168

at least 10 of 20 listed factors apply; the factors involve who directs or controls the manner

and means of the work.

         {¶ 13} Finally, under R.C. 4123.01(A)(1)(d), an employee is every person who is a

resident of a state other than this state and covered by that state's workers' compensation

law and performs labor or provides services for his or her employer while temporarily in this

state.

         {¶ 14} As previously noted, Margello asked this court to apply the factors of R.C.

4123.01(A)(1)(c) and find she was an employee based on the substantial control Parachute

exerted over her. R.C. 4123.01(A)(1)(c) lists a number of factors to consider to determine

who controls the manner and means of the work with regard to labor or services "pursuant to

a construction contract." Margello acknowledges that her situation does not involve a

construction contract, and we decline to find those factors pertinent to this case.

         {¶ 15} Further, this case does not involve and is not supported by R.C.

4123.01(A)(1)(d) or by cases that deal with the question of whether an individual was an

independent contractor as opposed to an employee, see Jakob v. Eckhart, 196 Ohio App.3d

368, 2011-Ohio-5036 (6th Dist.), or the question of which of two entities would be the correct

employer for workers' compensation purposes, see State ex. rel. Oakwood v. Indus. Comm.

132 Ohio St.3d 406, 2012-Ohio-3209 (village police officer injured while assigned to duties on

construction project).

         {¶ 16} Turning instead to R.C. 4123.01(A)(1)(a) and (b), we note that both

subdivisions involve language requiring "a contract for hire." When determining whether a

person is an employee, "the proper focus in these circumstances is whether a 'contract of

hire,' either express or implied, exists between the individual and the [city]." See Republic-

Franklin Ins. Co. v. City of Amherst, 50 Ohio St.3d 212, 215 (1990); see Dotson v. Conrad,

6th Dist. No. L-98-1201, 1998 WL 879111 (Dec. 18, 1998) (focus in Republic-Franklin was
                                             -4-
                                                                       Butler CA2012-08-168

whether a contract of hire, either express or implied, exists between individual and employer).

       {¶ 17} This court, citing Coviello v. Indus. Comm., 129 Ohio St. 589 (1935), reiterated

that a determining factor in establishing whether an employee-employer relationship exists is

a contract of hire, express or implied, oral or written. Doyle v. Mayfield, 48 Ohio App.3d 113,

114-115 (12th Dist.1988). In Coviello, the Ohio Supreme Court stated that a contract of hire

occurs when there is a "price, reward or compensation paid for personal service or for labor."

Id. at paragraph four of the syllabus. Absent an obligation by an employer to pay the person

employed, no contract of hire can exist. Doyle at 114-115.

       {¶ 18} Margello relies on a 1999 case from the Tenth District Court of Appeals to

support her argument that there may have been an implied contract, even if there was no

express contract for hire. See Anderson v. Linkscorp, Inc., 10th Dist. No. 98AP-454, 1999

WL 173994. The Anderson case involved a retiree who performed various duties as a

"ranger" on the golf course in exchange for unlimited free golf, free golf cart use, and free or

discounted food. Id. The Anderson court held that a person receiving compensation in the

form of free services under an express or implied contract was not a volunteer, but an

employee for purposes of workers' compensation. Id.

       {¶ 19} In the case at bar, however, it is undisputed that Margello did not receive any

form of compensation for her volunteer advocacy; there was no agreement or obligation to

compensate Margello; there was no evidence that either party presumed an employment

relationship was established, and no evidence of a contract for hire, express or implied, oral

or written.

       {¶ 20} Margello provided extensive documentation about the requirements placed on

her as a Parachute volunteer, but presented no evidence that would tend to prove that she

was an employee of Parachute. See e.g. Butler v. Mayfield, 10th Dist. No. 85AP-947, 1986

WL 3478 (Mar. 20, 1986).
                                              -5-
                                                                     Butler CA2012-08-168

      {¶ 21} When the evidence is not in conflict, or the facts are admitted, the question of

whether a person is an employee may be decided by the trial court as a matter of law. Lewis

v. Cartijo, 5th Dist. No. 2010 CA 00032, 2010-Ohio-5546, ¶ 11; Dotson, 6th Dist. No. L-98-

1201, 1998 WL 879111 (where essential facts are not in dispute, court must determine, as a

matter of law, whether appellant was an "employee," as defined by R.C. 4123.01).

      {¶ 22} Construing the evidence most favorably for Margello, reasonable minds can

come to but one conclusion, and that conclusion is adverse to Margello. The record

indicates Margello is a volunteer for Parachute who does not fall within the definition of

"employee" for purposes of workers' compensation.

      {¶ 23} Having failed to establish her status as an employee, or to establish an

employee-employer relationship, no further analysis is required with regard to the injury and

participation in the workers' compensation fund. See i.e., Anderson, 10th Dist. No. 98AP-

454, 1999 WL 173994; see i.e., Lord v. Daughtery, 66 Ohio St.2d 441, syllabus (1981)

(considering "causal connection" between employee's injury and his employment for

participation in workers' compensation fund depends on the totality of the facts and

circumstances surrounding the accident [emphasis added]). Parachute and BWC are

entitled to summary judgment. Margello's single assignment of error is overruled.

      {¶ 24} Judgment affirmed.


      HENDRICKSON, P.J., and M. POWELL, J., concur.




                                             -6-
