[Cite as Channels v. Bur. of Workers' Comp., 2011-Ohio-1173.]




                           STATE OF OHIO, JEFFERSON COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT

DANIEL CHANNELS,                                 )
                                                 )        CASE NO.    10 JE 16
        PLAINTIFF-APPELLANT,                     )
                                                 )
        - VS -                                   )        OPINION
                                                 )
ADMINISTRATOR, BUREAU OF                         )
WORKERS COMPENSATION, et al.,                    )
                                                 )
        DEFENDANTS-APPELLEES.                    )


CHARACTER OF PROCEEDINGS:                             Civil Appeal from Common Pleas Court,
                                                      Case No. 09CV267.


JUDGMENT:                                             Affirmed.


APPEARANCES:
For Plaintiff-Appellant:                              Attorney A. James Tsangeos
                                                      1810 – 36th Street NW
                                                      Canton, Ohio 44709-2739

For Defendants-Appellees:                             Attorney Michael DeWine
                                                      Attorney General
                                                      Attorney Kevin Reis
                                                      Assistant Attorney General
                                                      150 East Gay Street, 22nd Floor
                                                      Columbus, Ohio 43215-3130


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                      Dated: March 14, 2011
VUKOVICH, J.



       ¶{1}   Plaintiff-appellant Daniel Channels appeals the decision of the Jefferson
County Common Pleas Court granting summary judgment for defendant-appellee
Administrator of the Ohio Bureau of Workers’ Compensation.
       ¶{2}   In the first two assignments of error Channels argues that the trial court
did not correctly apply the standard of review for summary judgment. Specifically, he
asserts that while the trial court indicated that there was a genuine issue of fact in its
judgment, it still granted summary judgment for the Bureau. In doing so, according to
Channels, the court weighed his credibility and found that his version of what
happened seemed “unlikely.”         Consequently, he contends that the trial court
improperly granted summary judgment for the Bureau.
       ¶{3}   In his third assignment of error he asserts that the trial court incorrectly
determined that his injury did not occur “in the course of” and “arising out of” his
participation in the rehabilitation program. Specifically, he contends that going into his
house to pick up a contact name and directions was actual participation in the
Bureau’s rehabilitation program, and thus, his injury that occurred while doing that was
compensable.
       ¶{4}   The Bureau disputes those arguments. It asserts that the injury did not
occur while “in the course of” and “arising out of” his participation in the rehabilitation
program because at the time the injury occurred the job search had ended and the
new one had not yet began.
       ¶{5}   A review of the trial court’s order indicates that it did not misapply the
standard of review. Despite Channels insistence to the contrary, although the trial
court did state that his testimony seemed unreasonable and that reasonable minds
could disbelieve it, it also indicated that even if that testimony was believed the Bureau
was entitled to summary judgment as a matter of law because his injury did not occur
in the course of and arising out of his employment. Thus, there is no merit with the
first two assignments of error.
      ¶{6}   Furthermore, we agree with the trial court’s conclusion that the injury did
not occur in the course of employment and arise out of actual participation in the
rehabilitation program. The Bureau is not an employer in the traditional sense, and as
such, we disagree that Channels while making his fifteen face-to-face contacts per
week can be likened to a traveling sales person that could be protected while traveling
and performing tasks related to that position. Thus, we find no merit with the third
assignment of error. Accordingly, the judgment of the trial court is hereby affirmed.
                             STATEMENT OF THE CASE
      ¶{7}   Channels was injured in 2005 while at work; he received workers’
compensation benefits for that injury. Since he was unable to return to his previous
position, he was enrolled in the Bureau of Workers’ Compensation Vocational
Rehabilitation Program. The Vocational Rehabilitation Program required Channels to
make fifteen face-to-face contacts with prospective employers per week. Five of the
contacts were provided to him through his case worker. The other ten contacts he had
to come up with on his own. (Depo. 47).
      ¶{8}   On October 16, 2008, Channels went to Smitty’s Carpet Store to submit
his resume; this was one of his contacts. He did not get the job. He then returned
home purportedly to get another contact (name of potential employer) from his then
girlfriend and directions to that prospective place of employment. (Depo. 48). When
he got out of his truck and was walking toward the trailer, he fell and broke his ankle.
He avowed that his typical routine was to travel to a prospective employer’s location,
submit a resume, and then return home to get another contact and directions.
(Channels May 2010 Affidavit ¶3).
      ¶{9}   After the injury, he filed a claim with the Bureau seeking workers’
compensation. The Bureau rejected the claim. He appealed the rejection and the
matter was heard by a District Hearing Officer of the Industrial Commission of Ohio.
That Officer denied the claim. Channels appealed the denial, which resulted in a Staff
Hearing Officer of the Industrial Commission of Ohio hearing the claim. The denial
was affirmed. Channels appealed that denial and the Industrial Commission of Ohio
heard the claim and denied Channels right to compensation. Channels then filed a
complaint in the trial court appealing the decision of the Industrial Commission.
      ¶{10} Following the complaint, the parties filed their respective motions for
summary judgment.      After a hearing, the trial court denied Channels’ motion for
summary judgment, but granted the Bureau’s motion for summary judgment.
                               STANDARD OF REVIEW
      ¶{11} All assignments of error assert that the trial court’s grant of summary
judgment for the Bureau was erroneous. In reviewing a summary judgment award, we
apply a de novo standard of review. Cole v. Am. Industries & Resources Corp. (1998),
128 Ohio App.3d 546, 552. Thus, we apply the same test as the trial court. Civ.R.
56(C) provides that the trial court shall render summary judgment if no genuine issue
of material fact exists and when construing the evidence most strongly in favor of the
nonmoving party, reasonable minds can only conclude that the moving party is entitled
to judgment as a matter of law. State ex rel. Parsons v. Flemming (1994), 68 Ohio
St.3d 509, 511. A “material fact” depends on the substantive law of the claim being
litigated. Hoyt, Inc. v. Gordon & Assoc., Inc. (1995), 104 Ohio App.3d 598, 603, citing
Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 247-48. With that standard in
mind, we now address the assignments of error.
                          FIRST ASSIGNMENT OF ERROR
      ¶{12} “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION
FOR SUMMARY JUDGMENT DESPITE ADMITTING, IN ITS DISMISSAL ORDER,
THAT ISSUES OF FACT EXIST.”
                         SECOND ASSIGNMENT OF ERROR
      ¶{13} “THE TRIAL COURT FAILED TO APPLY THE APPROPRIATE
STANDARD FOR SUMMARY JUDGMENT BY WEIGHING THE EVIDENCE AND
APPELLANT’S CREDIABILITY [SIC].”
      ¶{14} The arguments made under these two assignments of error are related
and, as such, are addressed simultaneously.
      ¶{15} It is true that in rendering its judgment, the trial court does acknowledge
that there is a genuine issue of material fact. It also states that Channels’ explanation
that it was his practice to go to a prospective employer’s location and then return home
to get another contact name and directions seemed odd and unlikely. The trial court,
however, made these statements when ruling on Channels’ motion for summary
judgment. It then stated that Channels’ motion for summary judgment also fails for the
same reason why the Bureau’s motion for summary judgment succeeds. It gave the
following explanation:
       ¶{16} “For the purposes of Defendant’s Motion for Summary Judgment the
Court assumes, without deciding, that Plaintiff’s testimony is absolutely correct.
Defendant’s Motion for Summary Judgment claims that even if Plaintiff’s testimony is
true that his injury at home is not in the course of and arising out of his employment. A
contrary ruling would grant Worker’s Compensation benefits to every employee who
fell in the shower at home getting ready for work if he did not have a fixed situs (i.e.
Traveling salesman).”
       ¶{17} The trial court’s statements show that it was not assessing credibility,
that it was applying the legal standard appropriately, that regardless of whether
Channels’ explanation was believed, the Bureau was entitled to judgment as a matter
of law. In essence, the trial court held that Channels is a non-fixed-situs employee
and that at the latest, when he arrived at his home, his employment ceased. Thus, the
trial court’s holding is that as a matter of law his injury did not occur in the course of
and did not arise out of his employment with the Bureau and was not compensable.
Whether or not that position is correct is argued and explored in the third assignment
of error. Accordingly, appellant’s first and second assignments of error lack merit.
                          THIRD ASSIGNMENT OF ERROR
       ¶{18} “THE TRIAL COURT ERRED IN GRANTING APPELLEE’S MOTION
FOR     SUMMARY          JUDGMENT       WHEN       UNCONTROVERTED             EVIDENCE
DEMONSTRATES APPELLANT WAS INJURED WHILE IN THE COURSE OF AND
ARISING     OUT    OF HIS      VOCATIONAL       REHBAILITATION [SIC]         PROGRAM
MANDATED BY R.C. §4121.68.”
       ¶{19} R.C. 4121.68 states:
       ¶{20} “In the event a claimant sustains an injury or occupational disease * * * in
the course of and arising out of his participation in a rehabilitation program, the
claimant * * * may file a claim for compensation and benefits as if the claimant's
employer were the bureau of workers' compensation.”
      ¶{21} According to the statute, the Bureau is considered the employer,
Channels is the employee, and his participation in the rehabilitation program is his job.
In order for the injury to be compensable, the injury must occur while “in the course of
and arising out of” the injured employee’s employment. “In the course of and arising
out of” is the test used to determine whether the injury is compensable. Fisher v.
Mayfield (1990), 49 Ohio St.3d 275, 277. The Supreme Court has explained that
these two prongs are conjunctive, requiring both to be satisfied before compensation is
allowed. Id.
      ¶{22} As to the “in the course of” prong, the Court has stated:
      ¶{23} “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.’            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.” Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 120 (internal
citations omitted). 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, supra, at 277.
      ¶{24} The second prong, “arising out of,” contemplates a causal connection
between the injury and the employment. Ruckman, supra, at 121-122. The analysis
under this prong requires a totality of the circumstances review of the incident. Id. at
122. There are three basic factors that the Court set forth to assist 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.” Id. at 122, quoting
Lord v. Daugherty (1981), 66 Ohio St.2d 441, 444.
      ¶{25} However, this list is not exhaustive, but rather is illustrative.    Fisher,
supra, at 279, n.2. Workers' compensation cases are intensely fact specific and a
flexible and analytically sound approach is preferable to rigid rules that can lead to
unsound and unfair results. Id. at 280. Likewise, the workers' compensation statutes
must be liberally construed in favor of the employee. R.C. 4123.95; Fisher, supra, at
278.
       ¶{26} In the context of R.C. 4121.68 one Ohio appellate court case has
determined that the injury did not occur in the course of and arise out of the
rehabilitation program. Harding v. Conrad (1997), 121 Ohio App.3d 598. In Harding,
the employee was participating in a rehabilitation program and chose to stay at the
rehabilitation facility. A fire occurred during her stay and while walking to the stairs to
exit the building, the employee tripped over her own feet, fell to her knees and was
injured.   The employee sought compensation for her injury.           Compensation was
denied because her injury did not occur in the course of or arising out of her
participation in the rehabilitation program. In affirming the denial, the appellate court
explained that not all injuries that occur “while under prescription for rehabilitation
treatment would entitle that individual to workers’ compensation benefits.” Id. at 602. It
reasoned that reading the statute to mean that all injuries are compensable would be
preposterous. It explained:
       ¶{27} “For example, an individual who is walking into a rehabilitation facility for
treatment could slip and fall, an individual who has decided to stay and chat with a few
friends after treatment could slip and fall, or an individual driving to his prescribed
treatment could get into an accident-the scenarios are endless. Where do we draw
the line? Merely because a facility provides free room and board to an individual
participating in a rehabilitation program does not mean that the facility becomes a
guarantor of the participant's total safety. The statute and the Ohio Administrative
Code are harmonious and do reconcile with each other, State ex rel. Cuyahoga Cty.
Hosp.; the participant's safety will be guaranteed only while the individual is actually
participating in a rehabilitation program.” Id.
       ¶{28} We find that reasoning to be instructive.       The Bureau cannot be the
guarantor of the participant’s safety at all times.     And when, as here, the causal
connection is not found, the injury is not compensable.         Although Channels was
required to find ten contacts on his own and make fifteen face-to-face contacts per
week, at some point the job search ends. We agree with the Bureau that a claimant
who is injured at home is not injured while conducting the job search. Neither the
Bureau nor any prospective employer controlled the premises (his own yard) where
Channels was injured. Walking on his lawn was not a condition of, incidental to or an
obligation of participation in the rehabilitation program. Thus, just as the participant in
Harding was injured while not engaging in rehabilitation, Channels likewise was not
injured while engaging in the rehabilitation program. Merely walking into his home to
get the name and directions to the next prospective employer is as a matter of law not
sufficient for the injury to be compensable because at the time of the injury he was not
participating in the program.
       ¶{29} Channels does attempt to liken his actions to that of a traveling
salesman. Injuries that occur to a traveling salesperson while traveling for purposes of
work are typically compensable under workers’ compensation. Lippolt v. Hague, 10th
Dist. No. 08AP-140, 2008-Ohio-5070, ¶12, citing Fletcher v. Northwest Mechanical
Contr., Inc. (1991), 75 Ohio App.3d 466, 473; Rankin v. Thomas Sysco Food Services
(Nov. 27, 1996), 1st Dist. No. C-950904; Hampton v. Trimble (1995), 101 Ohio App.3d
282. We disagree with Channels that his actions of walking into his home to get
another name and contact are analogous to a traveling salesperson. The Bureau is
not the employer in the traditional sense and thus, the intent is to only cover the
participant while engaging in the actual rehabilitation, not while doing actions only
somewhat connected to the rehabilitation. As stated above, at some point the search
for employment ends. Thus, we find no merit with this assignment.
                                     CONCLUSION
       ¶{30} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.

Waite, P.J., concurs in judgment only.
DeGenaro, J., concurs.
