[Cite as Perry v. Kilbarger Constr., Inc., 2015-Ohio-4661.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


ROBERT PERRY                                        :         JUDGES:
                                                    :         Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                          :         Hon. William B. Hoffman, J.
                                                    :         Hon. Sheila G. Farmer, J.
-vs-                                                :
                                                    :
KILBARGER CONSTRUCTION, INC.                        :
                                                    :
        Plaintiff-Appellee                          :
                                                    :
and                                                 :         Case No. CT2015-0012
                                                    :
ADMINISTRATOR, BUREAU OF                            :
WORKERS' COMPENSATION                               :
                                                    :
        Defendant-Appellee                          :         OPINION


CHARACTER OF PROCEEDING:                                      Appeal from the Court of Common
                                                              Pleas, Case No. CD2009-0398

JUDGMENT:                                                     Affirmed/Reversed in Part


DATE OF JUDGMENT:                                             November 6, 2015


APPEARANCES:

For Plaintiff-Appellee                                        For Defendant-Appellant

JAMES C. AYERS                                                SARA L. ROSE
165 North High Street                                         P.O. Box 188
Columbus, OH 43215-2402                                       Pickerington, OH 43147

JOSEPH F. NAVIN                                               For Administrator, BWC
165 North High Street
Columbus, OH 43215                                            NATALIE J. TACKETT
                                                              150 East Gay Street
                                                              22nd Floor
                                                              Columbus, OH 43215-3130
Muskingum County, Case No. CT2015-0012                                                     2

Farmer, J.

       {¶1}   Nathan Hallowell, Derek Petry, and appellee, Robert Perry, all worked for

appellant, Kilbarger Construction Company, as drilling riggers. On November 14, 2007,

the three were driving home from work together, approximately two hours/ninety miles

from the drilling site. The driver, Mr. Petry, fell asleep and drove off the road. Mr.

Hallowell was killed and appellee and Mr. Petry sustained injuries. All three filed claims

for workers' compensation (Sue McMasters on behalf of Mr. Hallowell's dependent).

Appellant contested the claims, arguing the accident did not arise out of the employees'

employment.     By order dated March 10, 2009, the Industrial Commission allowed

appellee's claim (Claim No. 07-890751).

       {¶2}   On May 18, 2009, appellant filed an appeal to the Court of Common

Pleas.1 All parties filed motions for summary judgment. By findings and decision filed

December 5, 2011, the trial court granted summary judgment to appellee, finding

appellee was in the scope of his employment at the time of the accident. The trial court

instructed appellee to prepare an entry in conformity with its decision. By judgment

entry filed January 27, 2012, the trial court granted summary judgment to appellee,

finding the accident occurred within the course and scope, and arose out of, his

employment with appellant. Appellant filed an appeal to this court on February 24, 2012

(Case No. 2012-CA-12). In an opinion filed September 21, 2012, this court dismissed

the case for lack of a final appealable order, noting the trial court failed to determine the




1The Industrial Commission also allowed the claims of Sue McMasters on behalf of Mr.
Hallowell and Mr. Petry. Appellant appealed those cases as well. The trial court filed
an order of consolidation on September 21, 2010.
Muskingum County, Case No. CT2015-0012                                                3

injuries sustained by appellee that should be allowed in the claim.      See, Perry v.

Kilbarger Construction, Inc., 5th Dist. Muskingum No. 2012-CA-12, 2012-Ohio-4354.

      {¶3}   By judgment entry filed May 23, 2013, the trial court determined appellee's

injuries for purposes of workers' compensation benefits.

      {¶4}   In a judgment entry filed February 13, 2015, the trial court awarded

appellee's attorney the statutory maximum amount of $4,200.00 for attorney fees and

$1,323.57 for litigation expenses as against appellant.

      {¶5}   Appellant filed an appeal of the trial court's January 27, 2012 judgment

entry and February 13, 2015 judgment entry, and this matter is now before this court for

consideration. Assignments of error are as follows:

                                            I

      {¶6}   "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S SUMMARY

JUDGMENT MOTION AND IN DENYING KILBARGER'S SUMMARY JUDGMENT

MOTION, BECAUSE APPELLEE'S ACCIDENT DID NOT ARISE OUT OF HIS

EMPLOYMENT."

                                            II

      {¶7}   "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR

EXPENSES AND FEES PURSUANT TO R.C. 4123.512(F)."

                                            I

      {¶8}   Appellant claims the trial court erred in granting summary judgment to

appellee. We disagree.
Muskingum County, Case No. CT2015-0012                                              4


      {¶9}   Summary Judgment motions are to be resolved in light of the dictates of

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel.

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211:



             Civ.R. 56(C)   provides that before summary judgment may be

      granted, it must be determined 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 such

      evidence most strongly in favor of the nonmoving party, that conclusion is

      adverse to the party against whom the motion for summary judgment is

      made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511,

      628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50

      Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.



      {¶10} As an appellate court reviewing summary judgment motions, we must

stand in the shoes of the trial court and review summary judgments on the same

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio

St.3d 35 (1987).

      {¶11} R.C. 4123.01(C) defines "injury" for purposes of workers' compensation

benefits 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."
Muskingum County, Case No. CT2015-0012                                                5


        {¶12} Appellant argues the accident did not "arise out of" appellee's

employment. Appellant argues in its brief at 8 that when a "fixed-situs employee is

injured while commuting from work, his claim for workers' compensation benefits is

barred by the coming-and-going rule" unless an exception applies: "based on the totality

of the circumstances, a casual connection exists between the injury and the

employment" and/or "the injury was caused by a 'special hazard' created by the

employment." In its brief at 9, 11 and 12, appellant concedes appellee was a fixed-situs

employee and the accident occurred while he was commuting home from his fixed work

site.

        {¶13} In Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 119, 1998-Ohio-

455, the Supreme Court of Ohio explained the "coming-and-going rule" as follows:



              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 "arise[s] out of" the employment relationship so as to constitute a

        compensable injury under R.C. 4123.01(C).        "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 injury and the employment does not exist." MTD Products, Inc.

        v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, 663, citing

        Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401

        N.E.2d 448. The rationale supporting the coming-and-going rule is that
Muskingum County, Case No. CT2015-0012                                                    6


       "[t]he constitution and the statute, providing for compensation from a fund

       created by assessments upon the industry itself, contemplate only those

       hazards to be encountered by the employe[e] in the discharge of the

       duties of his employment, and do not embrace risks and hazards, such as

       those of travel to and from his place of actual employment over streets

       and highways, which are similarly encountered by the public generally."

       Indus. Comm. v. Baker (1933), 127 Ohio St. 345, 188 N.E. 560, paragraph

       four of the syllabus.



       {¶14} As explained by the Ruckman court at 121-122: " 'The "arising out of"

element***contemplates a causal connection between the injury and the employment.' "

       {¶15} In order to analyze the facts for a causal connection, it is necessary to

examine the applicability of the "totality of the facts and circumstances" test as set forth

in Lord v. Daugherty, 66 Ohio St.2d 441 (1981), and/or the "special hazard or risk rule"

enumerated in MTD Products, Inc. v. Robatin, 61 Ohio St.3d 66 (1991).

       {¶16} The "totality of the facts and circumstances" test is set forth in Lord, supra,

at syllabus:



               Whether there is a sufficient "causal connection" between an

       employee's injury and his employment to justify the right to participate in

       the Worker's 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
Muskingum County, Case No. CT2015-0012                                                     7


       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.



       {¶17} The "special hazard or risk rule" is explained in MTD Products, supra, at

68:



              More recently, in Littlefield v. Pillsbury Co., supra, [6 Ohio St.3d 389

       (1983)] we also recognized the "special hazard or risk" exception to the

       general rule. In Littlefield we held that when the employment creates a

       "special hazard," an employee is entitled to workers' compensation

       benefits if he sustains injuries because of that hazard. Furthermore, we

       held that the rule applies where: (1) "but for" the employment, the

       employee would not have been at the location where the injury occurred,

       and (2) the risk is distinctive in nature or quantitatively greater than the risk

       common to the public. Id. at syllabus.



       {¶18} As further analyzed by the Supreme Court of Ohio in Ruckman, supra, at

124:



              Accordingly, we now expressly limit the syllabus of Littlefield to

       state a test for determining only whether a traffic injury suffered by a fixed-

       situs employee while coming or going from work arises out of the
Muskingum County, Case No. CT2015-0012                                                  8


         employment relationship. If an employee's injury occurs in the course of

         his employment, yet fails the Lord three-part test for causation, a fixed-

         situs employee may, nevertheless, demonstrate the required causal

         connection between employment and injury under the special hazard rule

         of causation.



         {¶19} The facts are not in dispute. Appellee was hired by appellant to work on

Rig No. 4 in Utica, Ohio. Schein aff. at ¶ 6; Sturm aff. at ¶ 3 and 4. Appellee was part

of a three-member crew. Schein aff. at ¶ 6; Sturm aff. at ¶ 3 Each crew member was

given a "per diem" for expenses separate and apart from their hourly wage. Perry depo.

at 33; Petry depo. at 31. The crew was hired nine days prior to the accident and worked

on the rig in the same location, although it was anticipated that Rig. No. 4 would move

to other sites and the crew would follow the rig. Perry depo. at 31-32, 41; Petry depo. at

30, 36, 39; Sturm aff. at ¶ 5. The three employees, including appellee, lived some two

hours/ninety miles away from the rig site. Perry depo. at 62-63; Petry depo. at 54, 112.

When the accident occurred, the employees were traveling home from the site after

working sixteen hours. Perry depo. at 81-82; Petry depo. at 48-49, 130. The accident

occurred approximately one and one-half hours after leaving the site. Perry depo. at 93.

The employees were not paid for any of their time driving to and from the site, and their

job duties did not commence until they arrived at the site. Perry depo. at 79; Petry

depo. at 97.

         {¶20} From the facts sub judice, the totality of the circumstances test does not

apply.
Muskingum County, Case No. CT2015-0012                                                    9


       {¶21} As for the special hazard or risk rule, it is conceded by the facts that "but

for" the employment, appellee would not have been driving on the road at the time and

"but for" the commute, he would not have been involved in an accident. However,

satisfying only one prong of the Littlefield test is not sufficient.      It must also be

established that "the risk is distinctive in nature or quantitatively greater than the risk

common to the public." MTD Products, supra.

       {¶22} The analysis now is whether appellant created the "special hazard."

Under the facts of this case, we answer in the affirmative for the following reasons.

       {¶23} Appellant hired appellee knowing he would have to travel from his home to

Rig No. 4 in Utica, Ohio, or any other location where Rig No. 4 may be utilized. Sturm

depo. at 17, 19-20, 31. In fact, Rig No. 4 was moved the day of the accident to another

site in Utica. Perry depo. at 60-61; Petry depo. at 36. "[I]t was impossible for them to fix

their commute in relation to these remote work sites." Ruckman at 124. The per diem

given by appellant to each crew member was probably sufficient to pay for overnight

housing, but it had yet to be paid. Perry depo. at 34; Petry aff. at ¶ 6. The per diem

was insufficient to compensate them for a physical relocation to wherever Rig No. 4

would be located. "Although the riggers worked within an area of a one-day drive, that

area was not so limited as to bring the riggers' travel to the varying work sites in line

with work commutes common to the public." Ruckman at 125.

       {¶24} Given the facts that working at various sites necessitated travel and the

very nature of the employment mandated lengthy travel, the crew members were not

compensated for housing, and appellant required the crew members to work long hours

and extras hours, we find the special hazard rule has been fulfilled as in Ruckman at
Muskingum County, Case No. CT2015-0012                                                      10


125: "Here, however, the employment relationship dictates that the riggers undertake

interstate and lengthy intrastate commutes, thereby significantly increasing their

exposure to traffic risks associated with highway travel. Accordingly, because of the

combination of all these factors, the riggers have established a risk quantitatively

greater than risks common to the public." Therefore, appellee is entitled to participate in

the workers' compensation fund.

          {¶25} Upon review, we find the trial court did not err in granting summary

judgment to appellee.

          {¶26} Assignment of Error I is denied.

                                                II

          {¶27} Appellant claims the trial court erred in awarding appellee's attorney

attorney fees and litigation expenses. We agree in part.

          {¶28} R.C. 4123.512 governs workers' compensation appeals. Subsection (F)

states:



                 The cost of any legal proceedings authorized by this section,

          including an attorney's fee to the claimant's attorney to be fixed by the trial

          judge, based upon the effort expended, in the event the claimant's right to

          participate or to continue to participate in the fund is established upon the

          final determination of an appeal, shall be taxed against the employer or

          the commission if the commission or the administrator rather than the

          employer contested the right of the claimant to participate in the fund. The

          attorney's fee shall not exceed forty-two hundred dollars.
Muskingum County, Case No. CT2015-0012                                                 11




       {¶29} The decision to grant or deny fees under R.C. 4123.512(F) lies within the

sound discretion of the trial court and will not be disturbed absent an abuse of

discretion. Azbell v. Newark Group, Inc., 5th Dist. Fairfield No. 07 CA 00001, 2008-

Ohio-2639. In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶30} In its judgment entry filed February 13, 2015, the trial court determined the

following:



             The Court finds that Plaintiff's attorney of record, James C. Ayers,

       has expended sufficient time and effort in preparing, attending hearings,

       attending depositions, filing memoranda and briefs, and generally

       representing his client to be entitled to the statutory maximum award of

       $4,200.00.

             The Court takes notice that, although the maximum award is

       justified by the effort expended on the Perry case alone, substantial

       additional effort was expended in the furtherance of both Case No.

       CD2009-0398 and Case No. CD2009-0397, joined with this case for

       purposes of a summary judgment motion.            Neither client could be

       represented in a vacuum as an attorney cannot represent two clients in

       one proceeding without working with each client and filing required

       duplicate papers in each name.
Muskingum County, Case No. CT2015-0012                                                 12


             The Court further finds that mileage expense of $762.82 for

      Plaintiff's attorney to meet the obligations and requirements of his

      representation to be a reasonable litigation expense by Plaintiff's attorney

      to be reimbursed pursuant to R.C. 4123.512(F).            In determining a

      reasonable mileage expense the Court has relied upon AAA an

      authoritative source that publishes its research upon the matter yearly.

             The Court finds that deposition expense in the amount of $560.75

      was a necessary and reasonable litigation expenditure by Plaintiff's

      attorney to be reimbursed pursuant to R.C. 4123.512(F).



      {¶31} In its appellate brief at 25, appellant acknowledges the costs for the

stenographic deposition transcripts of appellee, Derek Petry, and Brian Sturm were

reasonable litigation expenses. We note appellee's attorney filed a detailed time sheet,

attached to the June 5, 2013 motion for attorney fees, setting forth the hours expended,

as well as an affidavit from a local attorney averring to a reasonable hourly fee. The

total attorney fees amounted to well over the statutory maximum of $4,200.00.

      {¶32} We conclude, as did the trial court, that the extensive nature of the case,

including some ninety docket filings, and the complexity of the issues as discussed in

Assignment of Error I, are sufficient to support the award of attorney fees and litigation

expenses.

      {¶33} However, appellant argues the litigation expenses awarded were

duplicative because appellee's attorney represented two of the three claimants and the

cases were consolidated for litigation. In particular, appellant argues the trial court
Muskingum County, Case No. CT2015-0012                                                   13


awarded the full amount of Mr. Perry's deposition in the case sub judice and in Mr.

Petry's case, awarded that trial counsel one-half of Mr. Perry's deposition costs. We

note Mr. Petry's attorney only asked for one-half of the Perry deposition cost ($214.67),

whereas Mr. Perry's attorney requested the entire amount ($437.60). See Plaintiff's

Motion for Attorney Fees and Taxation of Costs of Legal Proceedings filed August 26,

2013, and Plaintiff's Motion for Expenses and Fees filed June 5, 2013. We agree with

appellant's argument and reduce the award of litigation expenses in this case by

$214.67, the amount paid to Mr. Petry's attorney.

         {¶34} Upon review, we find the trial court did not abuse its discretion in awarding

appellee's attorney attorney fees and litigation expenses other than the $214.67 as

noted.

         {¶35} Assignment of Error II is granted in part and denied in part.
Muskingum County, Case No. CT2015-0012                                       14


       {¶36} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed in part and reversed in part.

By Farmer, J.

Gwin, P.J. and

Hoffman, J. concur.




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