[Cite as Jones v. Multicare Health & Educational Servs., Inc., 2013-Ohio-701.]



                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 98899


                                          ERIC JONES
                                                           PLAINTIFF-APPELLANT

                                                     vs.


 MULTICARE HEALTH & EDUCATIONAL SERVICES,
               INC., ET AL.

                                                           DEFENDANTS-APPELLEES



                                   JUDGMENT:
                             REVERSED AND REMANDED


                                     Civil Appeal from the
                              Cuyahoga County Court of Common Pleas
                                     Case No. CV-766598

        BEFORE:           Boyle, P.J., Celebrezze, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                            February 28, 2013
ATTORNEYS FOR APPELLANT

Dustin S. Lewis
Kenneth C. Podor
The Podor Law Firm
33565 Solon Road
Solon, Ohio 44139


ATTORNEYS FOR APPELLEES

For Multicare Health & Educational Services, Inc.

Michael J. Reidy
Scott W. Gedeon
Meredith L. Ullman
Ross, Brittain & Schonberg
6480 Rockside Woods Boulevard, S.
Suite 350
Cleveland, Ohio 44131

For Administrator, Bureau of Workers’ Compensation

Mike DeWine
Ohio Attorney General
Virginia Egan Fisher
Assistant Attorney General
Workers’ Compensation
State Office Building, 11th Floor
615 West Superior Avenue
Cleveland, Ohio 44113
MARY J. BOYLE, P.J.:

       {¶1} Plaintiff-appellant, Eric Jones, appeals the trial court’s judgment granting

summary judgment in favor of defendants-appellees, Multicare Health      and Educational

Services, Inc. (“Multicare”), and the Administrator of the Bureau of Workers’

Compensation (the “BWC”), on his claim seeking compensation under the Workers’

Compensation Act.      The trial court found that the injuries Jones sustained in a

motor-vehicle accident were not sustained in the course of and arising out of his

employment at Multicare.     Finding merit to the appeal, we reverse and remand for

further proceedings.

                              Procedural History and Facts

       {¶2} In September 2010, Multicare, a home health agency, hired Jones as its

director of nursing — a salaried position that required Jones to work from 8:30 a.m. to

5:00 p.m. with an unpaid, half-hour lunch break.

       {¶3} On January 5, 2011, Jones reported to Multicare’s office and then traveled

to a client’s home located on Lakeshore Boulevard.       Jones picked up a prescription

order from the client and drove to a nearby Rite Aid pharmacy on East 185th Street to fill

the prescription.

       {¶4} Upon learning that the prescription would take 45 minutes to fill, Jones

decided to take his lunch break, heading downtown. According to Jones’s deposition,
he had lunch at either Slyman’s or Landmark restaurant in Cleveland. Following his

lunch, Jones attempted to return to Rite Aid but was rear-ended by another vehicle on the

exit ramp of I-90 at the East 185th Street exit.          Jones sustained injuries and

subsequently filed a claim for workers’ compensation.

       {¶5} Jones’s claim for workers’ compensation benefits was allowed by a district

hearing officer at the Industrial Commission, which was subsequently affirmed by a staff

hearing officer.   Thereafter, the Industrial Commission refused to hear further appeals

from the district hearing officer’s decision.

       {¶6} In October 2011, Multicare filed an appeal with the court of common

pleas. Jones subsequently filed his complaint, seeking a judgment against Multicare

and the BWC, with the right to participate and receive benefits for the injuries he

sustained in the motor-vehicle accident.

       {¶7} Multicare subsequently moved for summary judgment, which Jones

opposed. The trial court ultimately granted Multicare’s motion, finding that Jones was

not entitled to workers’ compensation benefits.

       {¶8} Jones appeals, raising a single assignment of error:

       The lower court erred in granting appellees’ motion for summary
       judgment.

                                    Standard of Review

       {¶9} We review an appeal        from summary judgment under a de novo standard.

 Baiko v. Mays, 140 Ohio App.3d 1, 10, 746 N.E.2d 618 (8th Dist.2000). Accordingly,

we afford no deference to the trial court’s decision and independently review the record
to determine whether summary judgment is appropriate.            N.E. Ohio Apt. Assn. v.

Cuyahoga Cty. Bd. of Cty. Commrs., 121 Ohio App.3d 188, 192, 699 N.E.2d 534 (8th

Dist.1997).

       {¶10} Civ.R. 56(C) provides that before summary judgment may be granted, a

court must determine that

       (1) no genuine issue as to any material fact remains to be litigated, (2) the

       moving party is entitled to judgment as a matter of law, and (3) it appears

       from the evidence that reasonable minds can come to but one conclusion,

       and viewing the evidence most strongly in favor of the nonmoving party,

       that conclusion is adverse to the nonmoving party.

State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 672 N.E.2d

654 (1996).

       {¶11} The moving party carries an initial burden of setting forth specific facts that

demonstrate his or her entitlement to summary judgment. Dresher v. Burt, 75 Ohio

St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the movant fails to meet this burden,

summary judgment is not appropriate, but if the movant does meet this burden, summary

judgment will be appropriate only if the nonmovant fails to establish the existence of a

genuine issue of material fact. Id. at 293.

                                      Governing Law

       {¶12} To recover workers’ compensation benefits, Ohio law requires that the

worker demonstrate that an injury occurred both “in the course of” employment and that
it “arises out of” that employment. Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d

117, 121, 689 N.E.2d 917 (1998), citing Fisher v. Mayfield, 49 Ohio St.3d 275, 277, 551

N.E.2d 1271 (1990); see also R.C. 4123.01(C). Failure to satisfy both prongs precludes

recovery under the Workers’ Compensation Act. Fisher at 277. But in applying the

statutory requirements, we remain mindful that the workers’ compensation statutes

should be liberally construed in favor of employees. R.C. 4123.95.

       {¶13} In this case, Multicare moved for summary judgment on the basis that

Jones cannot satisfy either prong because his injuries arose as a result of “an excursion of

his own choosing that bore no relationship to his job duties that day.” In its motion,

Multicare asked the trial court to take judicial notice that the Rite Aid pharmacy is 1.5

miles from the patient’s residence.      Multicare further asked the trial court to take

judicial notice that the distance from Rite Aid to Slyman’s restaurant is 9.85 miles, and

Rite Aid to Landmark restaurant is 8.2 miles. According to Multicare, it is not required

to bear the liability for Jones’s voluntary “frolic” during the work day.

       “Coming-and-Going” Rule

       {¶14} Multicare cited several cases in support of its argument that “lunchtime

excursions or injuries sustained while traveling to and from lunch are not compensable.”

 We note that the cases relied on by Multicare primarily hinged on the

“coming-and-going” rule.      “The coming-and-going rule is a tool used to determine

whether an injury suffered by an employee in a traffic accident occurs ‘in the course of’

and ‘arises out of’ the employment relationship so as to constitute a compensable injury.”
 Ruckman at 119.       “As a general rule, an employee with a fixed place of employment,

who is injured while traveling to or from his place of employment, is not entitled to

participate in the Workers’ Compensation Fund because the requisite causal connection

between the injury and the employment does not exist.”          MTD Prods., Inc. v. Robatin,

61 Ohio St.3d 66, 68, 572 N.E.2d 661 (1991).

       {¶15} Although Multicare asserted that the “coming-and-going” rule is not

applicable in its reply brief, the majority of the cases that it relied on in support of its

motion were based on this very principle with respect to fixed-situs employees traveling

to lunch.     Notably, Multicare did not argue or establish that Jones had a “fixed place of

employment.”       Even on appeal, Multicare relies primarily on two cases, namely, Hill v.

Gen. Metal Heat Treating, Inc., 47 Ohio App.3d 72, 547 N.E.2d 405 (8th Dist.1988),

and Smith v. Akron, 9th Dist. No. 22101, 2004-Ohio-4974, that it argues supports the

trial court’s granting of summary judgment. These two cases, however, involved an

employee with a fixed place of employment.          This is a critical distinction from the

instant case.    Again, Multicare never established, let alone argued, that Jones was a

fixed-situs     employee.      We     therefore   find   that    the   cases   applying   the

“coming-and-going” rule to fixed-situs employees are inapplicable to this case.

       {¶16} Thus, we now turn to the critical issue: whether Multicare established as a

matter of law that Jones’s injuries did not occur in the course of and arise out of his

employment.

       “In the Course of” Employment
      {¶17} Turning to the first prong, it is well settled that the mere fact that an injury

occurred during employment is not sufficient to establish entitlement to benefits.

Rosado v. Cuyahoga Metro. Hous. Auth., Inc., 8th Dist. No. 87922, 2007-Ohio-1164,

citing Eggers v. Indus. Comm., 157 Ohio St. 70, 104 N.E.2d 681 (1952). The Ohio

Supreme Court summarized this prong as follows:

      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.

(Citations omitted.) Ruckman, 81 Ohio St.3d 117, 120, 689 N.E.2d 917.

      {¶18} “In analyzing whether an injury occurred in the course of employment, a

court must consider 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.” Woodard v. Cassens Transport Co., 3d Dist. No. 14-11-22, 2012-Ohio-4015, ¶

17, quoting Fisher, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271. “If the injuries are

sustained [off premises], the employe[e] * * * must, at the time of his injury, have been

engaged in the promotion of his employer’s business and in the furtherance of his
affairs.”   Ruckman at 121, quoting Indus. Comm. v. Bateman, 126 Ohio St. 279, 185

N.E. 50 (1933), paragraph two of the syllabus.

       {¶19} We find that reasonable minds could reach differing conclusions with

respect to this prong. The record reveals that Jones’s job duties required him to drive to

a pharmacy to pick up the client’s prescription.     The issue in this case, therefore, hinges

on whether Jones departed from his job duties at the time of the accident on a personal

errand or frolic.   While Multicare contends that Jones had engaged in a frolic by driving

downtown for lunch — departing from his job duties — Jones maintains that he had

already resumed work at the time of the accident because he was driving to the pharmacy

to pick up the client’s prescription.

       {¶20} Contrary to Multicare’s assertion, we cannot say that Jones was off on a

frolic as a matter of law.     Notably, although Multicare emphasizes the distance that

Jones drove downtown to have lunch, i.e., at least eight miles away, the record reveals

that the accident occurred at the East 185th Street exit off of I-90 — closer to the Rite

Aid pharmacy than downtown. We further note that there is no dispute that Jones was

entitled to a lunch break.    Nor is there any evidence that Multicare restricted when or

where Jones could take his lunch.       Thus, given that the timing, place, and circumstances

of the motor- vehicle accident allow for two equally compelling conclusions as to

whether Jones was in the course of his employment at the time of the accident, we find

that the trial court erred in deciding this issue as a matter of law.

       “Arising Out” of the Employment
       {¶21} The “arising out of” the employment prong employs a totality of the

circumstances approach to determinate whether a causal connection existed between the

employment and the injury. Fisher, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271.

       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 the (1) proximity of the scene of the
       accident to the place of employment; (2) the degree of control the employer
       had over the scene of the accident; and (3) the benefit the employer
       received from the injured employee’s presence at the scene of the accident.

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

factors, however, are not dispositive.   Indeed, due to the fact-specific nature of these

cases, “no one test or analysis can be said to apply to each and every factual possibility.”

 Fisher at 280.

       {¶22} In deciding this prong, the crucial issue is whether a sufficient causal

connection exists between Jones’s injury from the motor-vehicle accident and his

employment. We find that reasonable minds could reach differing conclusions with

respect to this prong.

       {¶23} According to Multicare, a strict application of the Lord factors precludes

Jones from participating in the Workers’ Compensation Fund. Multicare asserted in its

motion for summary judgment that (1) the proximity of the scene bore absolutely no

relationship to Jones’s job duties, (2) that Multicare had no control over the scene of the

accident, and (3) that Multicare received no benefit from Jones being in that area at the

time of the accident.    The gravamen of Multicare’s argument is that Jones’s decision to
drive so far for lunch renders the causal connection between his injury and employment

at the time of the accident too remote to entitle him to benefits.    Although we may agree

that a juror may find that Jones’s decision to drive downtown to be fatal to his claim for

workers’ compensation benefits, we cannot say that reasonable minds would all reach the

same conclusion.

       {¶24} Indeed, construing the facts in a manner most favorable to Jones, we find

that a reasonable juror could conclude that there is a sufficient causal connection

between Jones’s injury and his employment to entitle him to benefits.             First, the

accident occurred closer to the pharmacy than to downtown, and Jones was heading to

the pharmacy as part of his job duties. Secondly, the second prong of the Lord test

considers whether the employer had some degree of control over the scene of the

accident, which includes how the claimant came to be there. See Chilton v. Conrad, 2d

Dist. No. 04CA0050, 2005-Ohio-3873. Jones would not have been in that area if it

were not for the fact that he had to pick up his client’s prescription. Finally, the last

element contemplates the benefit that Multicare received from Jones being in that area at

the time of the accident.      Multicare receives a benefit from its employees being

refreshed and rejuvenated from having a lunch.      It further received a benefit from Jones

picking up the client’s prescription — a necessary part of his job.

       {¶25} We further find that our decision is supported by the Ninth District’s

decision in Miller v. Admr., Bur. Workers’ Comp., 9th Dist. No. 24805, 2010-Ohio-1347.

 In Miller, the court held that the claimant was entitled to workers’ compensation
benefits for the injuries that he sustained during a paid break at a restaurant en route to

his next inspection site. While we do not find that Miller is completely analogous to the

instant case, we find that it is persuasive authority in support of Jones’s argument that

summary judgment should not have been granted.          Although there are some factual

distinctions between Miller and this case, i.e., that Miller was on a paid break at the time

that he was injured, we note that the holding in Miller granted judgment in favor of the

employee.    Here, Jones relies on Miller in support of his claim that reasonable minds

could reach different conclusions with respect to this case.   We agree.

       {¶26} In analyzing the “arising out of” prong, the Miller court emphasized that

the employer did not prohibit its employees from taking breaks off the premises and that

it was reasonable for Miller to take the break off the premises given the amount of travel

inherent to his job duties. This is analogous to the instant case. Again, there is no

evidence in the record that Multicare restricted when or where Jones could take his lunch

break. Further, it was reasonable for Jones to take his lunch while out picking up a

prescription at a pharmacy.   Given that Multicare reasonably expected its employees to

take a lunch, we also cannot say that Multicare is insulated from all liability simply

because Jones’s lunch was not paid. As discussed above, this case does not involve an

employee with a fixed location of employment taking his lunch off the premises.

       {¶27} Accordingly, having found that reasonable minds could differ in

determining whether a sufficient causal connection exists between Jones’s injury and

employment, we find that the trial court erred in deciding the issue as a matter of law.
See Saldana v. Erickson Landscaping & Constr., 11th Dist. No. 2003-G-2546,

2005-Ohio-142 (recognizing that reasonable minds can differ on the issue of whether

employee’s injury arose out of his employment).

       {¶28} Jones’s sole assignment of error is sustained.

       {¶29} Judgment reversed and case remanded to the lower court for further

proceedings consistent with this opinion.

       It is ordered that appellant recover from appellees costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment

into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MARY J. BOYLE, PRESIDING JUDGE

FRANK D. CELEBREZZE, JR., J., and
SEAN C. GALLAGHER, J., CONCUR
