[Cite as Samuel v. Progressive Cas. Ins. Co., 2017-Ohio-388.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104472




                                    ANGELA SAMUEL
                                                            PLAINTIFF-APPELLANT

                                                      vs.


                            PROGRESSIVE CASUALTY
                             INSURANCE CO., ET AL.
                                                            DEFENDANTS-APPELLEES




                                            JUDGMENT:
                                             AFFIRMED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                    Case No. CV-15-847070

        BEFORE: Laster Mays, J., E.T. Gallagher, P.J., and Blackmon, J.

        RELEASED AND JOURNALIZED: February 2, 2017
                                      -i-



FOR APPELLANT

Angela Samuel, pro se
12841 Walnut Hill Drive
North Royalton, Ohio 44133


ATTORNEYS FOR APPELLEE

Timothy L. Zix
Christopher B. Ermisch
Taft Stettinius & Hollister, L.L.P.
200 Public Square, Suite 3500
Cleveland, Ohio 44114
ANITA LASTER MAYS, J.:

       {¶1}   Plaintiff-appellant Angela Samuel (“Samuel”) appeals, pro se, the trial

court’s grant of summary judgment in favor of Progressive Casualty Insurance Co.

(“Progressive”), and the Ohio Bureau of Workers’ Compensation (“BWC”), finding that

Samuel did not suffer a compensable, work-related injury. We affirm the trial court’s

findings.

       I.     Facts and Background

       {¶2}     Samuel was employed by Progressive as a retention specialist, a job

requiring speaking with clients by telephone, computer access, giving presentations and

occasionally attending meetings. Samuel worked primarily from her residence in North

Royalton. In the event of technical problems, Samuel worked on-site at the 300 North

Commons Boulevard location of Progressive’s campus in Mayfield, Ohio. Samuel’s

regular work schedule was Monday, Tuesday, Wednesday, and Saturday from 8:00 a.m.

to 1:00 p.m., and from 7:00 p.m. to midnight.

       {¶3} From February 10, 2014 to March 8, 2014, Samuel was on a leave of

absence and, from March 8, 2014 to March 25, 2014, subject to work restrictions. Both

periods were covered under the Family Medical Leave Act         (“FMLA”).     Samuel’s

FMLA entitlement was due to issues unrelated to her employment. Progressive’s Leave

of Absence Department (“LOA”) notified Samuel upon initiation of her FMLA request
that LOA policy required that all documentation be emailed, mailed, or faxed to LOA.

Samuel denies receiving notification of the policy.

       {¶4} Documents submitted to LOA by Samuel and her doctors during the FMLA

period were sometimes misplaced by LOA and, at other times, LOA denied receipt.

Samuel asserts that she was contacted by LOA just a few days prior to March 25, 2014,

and advised that she would be terminated if she failed to submit FMLA paperwork

justifying her work restrictions by that date.

       {¶5} Concerned that she would miss the deadline, and in light of the prior issues

with LOA regarding receipt or misplacement of documents, the evening of Sunday,

March 23, 2014, Samuel decided to hand-deliver the paperwork to the Human Resource

Department (“HR”), located in the West Building of the Progressive campus. The West

Building was accessible to employees for 24 hours per day, seven days per week. Samuel

was not aware that LOA, located in the North Building of the campus, was not part of

HR. LOA’s operating hours were Monday through Friday from 7:00 a.m. to 6:30 p.m.

       {¶6} Samuel placed the documents on the unattended reception desk outside of

the HR department.         As Samuel descended the stairway to leave, she slipped on a

substance that she later described as coffee, injuring her right side. An employee who

witnessed the fall contacted security. Samuel informed the guard that she was feeling

dizzy after the fall, but the guard refused to call an ambulance until he talked with his

supervisor. An ambulance transported Samuel to Hillcrest Hospital approximately one

hour after the incident.
       {¶7} On January 29, 2015, the Ohio Industrial Commission (“OIC”) denied

Samuel’s workers’ compensation claim (“Claim”). Progressive argued that the injury did

not occur within the scope of Samuel’s employment, the injury was idiopathic based on

Samuel’s historical issues of dizziness, and that there was no credible evidence that the

incident occurred as described. Samuel, represented by counsel, argued that any prior

claims of dizziness or headaches were unrelated, infrequent, and had been treated prior to

the injury.

       {¶8} The hearing officer disallowed the claim, finding that Samuel failed to

establish, by a preponderance of the evidence, that she sustained a compensable injury, or

to refute idiopathic causation. Samuel had been seeing a physician due to dizziness for

the prior six months, a symptom that the evidence showed occurred more frequently

during the two weeks prior to the injury. Though Samuel asserted that she slipped on

coffee, the security guard testified there was no coffee or other substance on the steps.

       {¶9} On March 27, 2015, Samuel’s appeal to the OIC was denied. The OIC also

determined that the cause of injury was idiopathic. On June 17, 2015, Samuel appealed

to the Cuyahoga County Court of Common Pleas pursuant to R.C. 4123.512.

       {¶10}     On April 12, 2016, the trial court granted summary judgment for

Progressive, finding that Samuel did not suffer a work-related injury. Samuel filed this

pro se appeal.

II.    Standard of Review
      {¶11}    We first address the broad scope of the trial court’s review under R.C.

4123.512, as compared to typical administrative appeals. A claimant effectively begins

anew, without regard to the proceedings before the OIC:

      An R.C. 4123.512 appeal “necessitates a new trial, without reference to the
      administrative claim file or consideration of the results of the administrative
      hearings” and “is not a record review or an error proceeding.” Rather,
      pursuant to the key final sentence of R.C. 4123.512(D), “[t]he court, or the
      jury under the instructions of the court, if a jury is demanded, shall
      determine the right of the claimant to participate or to continue to
      participate in the fund upon the evidence adduced at the hearing of the
      action.”

Bennett v. Admr., Ohio Bureau of Workers’ Comp., 134 Ohio St.3d 329, 2012-Ohio-5639,

982 N.E.2d 666, ¶ 19, quoting Robinson v. B.O.C. Group, Gen. Motors Corp., 81 Ohio

St 3d 361, 368, 691 N.E.2d 667 (1998).

      {¶12}    The claimant bears the burden of proving entitlement to coverage. “The

proceedings are de novo both in the sense of receipt of evidence and determination.”

Bennett at ¶ 2, quoting Robinson at 368.

      {¶13} Our review of summary judgment on appeal is also de novo:

      Appellate review of summary judgment is de novo, governed by the
      standard set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185,
      2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. “Summary judgment may be
      granted only when (1) there is no genuine issue of material fact, (2) the
      moving party is entitled to judgment as a matter of law, and (3) viewing the
      evidence most strongly in favor of the nonmoving party, reasonable minds
      can come to but one conclusion and that conclusion is adverse to the
      nonmoving party.” Marusa v. Erie Ins. Co., 136 Ohio St.3d 118,
      2013-Ohio-1957, 991 N.E.2d 232, ¶ 7.

Rolsen v. Walgreen Co., 8th Dist. Cuyahoga No. 104431, 2016-Ohio-8304, ¶ 5.

      {¶14} The initial burden is on the party moving for summary judgment:
       The party moving for summary judgment bears the initial burden of
       apprising the trial court of the basis of its motion and identifying those
       portions of the record which demonstrate the absence of a genuine issue of
       fact on an essential element of the nonmoving party’s claim. Dresher v.
       Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). Once the moving
       party meets its burden, the burden shifts to the nonmoving party to set forth
       specific facts demonstrating a genuine issue of material fact exists. Id. To
       satisfy this burden, the nonmoving party must submit evidentiary materials
       showing a genuine dispute over material facts. PNC Bank, N.A. v.
       Bhandari, 6th Dist. Lucas No. L-12-1335, ¶ 9.

Lillie & Holderman v. Dimora, 8th Dist. Cuyahoga No. 100989, 2015-Ohio-301, ¶ 9.

III.   Assignments of Error

       {¶15} Samuel’s pro se brief offers two assigned errors that effectively contain

arguments regarding the proceedings and evidence. We discern that the basis for her

appeal is error by the trial court in granting summary judgment, as also construed and

briefed by Progressive, and we will address Samuel’s asserted issues in that context. We

affirm the trial court’s findings.

 IV. Law and Analysis

       {¶16} Samuel argues that the trial court obstructed Samuel’s introduction of

evidence supporting that: 1) as the result of LOA’s misplacement of her paperwork and

the threat of termination of untimely submission, she was required to deliver the

paperwork; 2) Progressive’s prior erroneous termination of her employment during the

FMLA period as the result of misplaced paperwork motivated delivery of the documents;

and 3) Samuel’s documents and medical reports substantiating her arguments are not

contained in the record.
       {¶17} To establish the right to participate in the workers’ compensation fund, a

claimant must show by a preponderance of the evidence both that the injury arose out of

and in the course of employment, and that a proximate causal relationship existed

between the injury and the harm or disability. White Motor Corp. v. Moore, 48 Ohio

St.2d 156, 357 N.E.2d 1069 (1976), paragraph one of the syllabus.

       {¶18}    The OIC transcript contained in the record before us reflects Samuel’s

objections to Progressive’s assertions.     Samuel pointed to evidence supporting her

position that her counsel apparently failed to provide to the hearing officer, but agreed to

supply after the hearing.

       {¶19} One of the exhibits that Samuel argues she was precluded from introducing

at the trial court is a writing evidencing that she was required to deliver the paperwork

due to the threat of termination for failure to submit it by the deadline.          Samuel

referenced the document in addressing the hearing officer.            The hearing officer

responded that he did not think that the OIC received the paperwork. Samuel’s counsel

confirmed that he “did not think so.” Samuel asked the hearing officer whether it could be

submitted, and her attorney stated he would make copies for the hearing officer.

       {¶20}    It appears from the transcript that the referenced statement was read into

the record by counsel for Progressive:

       [Counsel]:    I was going to say you have the statement of Ms. Burian [the
                     Progressive LOA employee] with the time, the FMLA time,
                     LOA time she [Samuel] took. All this statement says is that as
                     of 2-28 apparently, there’s not a date else [sic] that I see on
                     this, that she did not have documentation to support time off
                     after 3-8 and she needs to submit paperwork from your doctor
                      to extend time off after 3-8. If you don’t have that
                      paperwork, you need to submit FMLA paperwork by 3-25 in
                      order to protect the time off.

       [Samuel]:      Exactly. So she [Burian] was saying that I did not have any
                      paperwork, which she had, that I was supposed to have
                      restrictions during that time. So she already had the
                      paperwork, but she’s sending me an email saying she did not
                      have any paperwork supporting anything, and she did have it
                      for [frequent lavatory access], but that I was supposed to be at
                      work but with restrictions during that time.

(Tr. 35.)

       {¶21} Samuel also refuted Progressive’s allegations that the cause of the incident

was idiopathic resulting from Samuel’s history of dizzy spells. Counsel for Samuel also

agreed to furnish the hearing officer with copies of medical records referenced by Samuel

during the hearing.

       {¶22}    The trial court record contains Progressive’s notice of submission of

transcript of the January 29, 2015 OIC hearing. While exhibits are referenced in the

transcript, no exhibits accompany the submission.              The record also contains

Progressive’s notice of filing Samuel’s December 1, 2015 deposition transcript. There

are no deposition exhibits included in the record.

       {¶23} Progressive submitted its motion for summary judgment by the dispositive

motion deadline of February 29, 2016.         Progressive supported its motion with (1)

excerpts from the OIC hearing transcript, (2) excerpts from the Samuel deposition, (3) the

affidavit of Patricia A. Burian (“Burian”), the leave specialist assigned to work with
Samuel, and (4) copies of three legal cases in support of Progressive’s position. No other

exhibits were attached.

       {¶24} Samuel was represented by counsel at the trial court level, though not by

the same individual who appeared before the OIC. Attached in support of Samuel’s

opposition to summary judgment is an excerpt from the OIC hearing, and four pages of

Samuel’s deposition testimony, explaining the basis for her assertion that she was

required to deliver the paperwork. There are no affidavits or exhibits. There are also no

objections in the record to Progressive’s failure to provide exhibits.

       {¶25}    The trial court’s decision is cursory, finding that the injury was not

work-related. As we have already established, on appeal from the OIC under R.C.

4123.512, the trial court’s review is de novo.        Thus, the trial court is required to

“determine the right of the claimant to participate in the fund [solely] upon the evidence

adduced at the hearing of the action.” Szulinski v. Kellison & Co., 8th Dist. Cuyahoga

Nos. 99672 and 99674, 2014-Ohio-111, ¶ 25.

       {¶26}    “[A]n employee is in the scope of his employment when performing a

required duty done directly or indirectly in the service of the employer.” Rolsen v.

Walgreen Co., 8th Dist. Cuyahoga No. 104431, 2016-Ohio-8304, ¶ 8, citing Rosado v.

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

10, citing Indus. Comm. v. Ahern, 119 Ohio St. 41, 162 N.E. 272 (1928), paragraphs two

and three of the syllabus.
       {¶27} Though the law requires that workers’ compensation laws be liberally

construed in favor of an employee, we are also guided by the premise that “[a]n employee

who is injured when engaged, not in the service of an employer, but in pursuance of the

employee’s private and personal business, disconnected with the employment, is not

entitled to compensation under the Workmen’s Compensation Law.” Indus. Comm. of

Ohio v. Ahern, 119 Ohio St. 41, 46, 162 N.E. 272 (1928).

       {¶28}      We recently determined that, “workers’ compensation claims are fact

specific, and no one test or analysis applies to every claim.” Rolsen at ¶ 10, citing State

ex rel. Oakwood v. Indus. Comm. of Ohio, 132 Ohio St.3d 406, 2012-Ohio-3209, 972

N.E.2d 590, ¶ 9; Fisher v. Mayfield, 49 Ohio St.3d 275, 280, 551 N.E.2d 1271 (1990).

As a result,

       Application of the Lord/Fisher factors[1] is not mandatory, and courts were
       cautioned to avoid the application of bright-line rules that will lead to
       “unsound and unfair” results. Id. Ahern, [119 Ohio St. 41, 46, 162 N.E.
       272 (1928)] remains valid and binding precedent, and we must give
       consideration to the analysis contained therein.

Rolsen at ¶ 10. However, injuries suffered when a claimant is “engaged in a purely

personal pursuit or errand” are not compensable under workers’ compensation law.

(Citation omitted.) Rolsen at ¶ 8.


            Lord v. Daugherty, 66 Ohio St.2d 441, 444, 423 N.E.2d 96 (1981), and
       1



Fisher, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271, (“(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.”)
       {¶29}      The Burian affidavit, submitted to support Progressive’s motion for

summary judgment, states that LOA did not direct that Samuel deliver her paperwork,

prior submissions by Samuel were made by facsimile or email, and the Progressive policy

specifically states that paperwork is to be “faxed, emailed, or mailed.” Samuel does not

deny the method of delivering prior submissions. Instead, Samuel states that, due to the

loss of prior paperwork and the one-to-two-day deadline for delivery, she was compelled

to hand-deliver the documentation to ensure receipt.

       {¶30}     Samuel argued in her opposition to summary judgment that the existence

of the policy did not mean that an employee was barred from hand-delivering documents.

 We note that there is no copy of the Progressive policy attached to the Burian affidavit,

and there is no copy of the policy elsewhere in the record.

       {¶31}     Progressive argues that Samuel did not produce evidence to support her

claim that she received notice that she would be terminated if she did not “hand-deliver”

the paperwork.     In light of the absence of exhibits, we are unable to determine whether

Progressive’s argument is that Samuel never produced the document from Progressive

directing that she deliver the paperwork by the submission deadline, or that the document

was produced, but does not specifically require that Samuel hand-deliver the paperwork.

       {¶32}     Based on the record before us, we concur with the trial court’s finding

that Samuel’s alleged injury did not occur during the course of her employment. There is

no evidence that Samuel was required to deliver documents on a Sunday evening.

Samuel admits that she hand-delivered the documentation to insure that the paperwork
was actually received. However, in lieu of delivering the documents during regular

working hours where she could physically deliver the paperwork to a responsible

individual and obtain confirmation of receipt of the information, she chose to leave the

documents at an unattended reception desk.

      {¶33}     It is established that:

      [U]nder Ohio law, where an employee sustains injuries while engaged in
      otherwise personal activities which are instigated by or subsidized by his
      employer, that employee will be within the course of his employment and
      the injury will be determined to have arisen from that employment for
      workers’ compensation purposes.

(Citations omitted.) Weaver v. Eaton Corp., 8th Dist. Cuyahoga No. 56897, 1990 Ohio

App. LEXIS 1732, at *11 (May 3, 1990); Rolsen, 8th Dist. Cuyahoga No. 104431,

2016-Ohio-8304, ¶ 14.      We do not find that the employer instigated or subsidized

Samuel’s delivery decision.

      {¶34} We agree that certain documentation referenced by Samuel is not included

in the record. However, Samuel did not proffer the documents as evidence before the trial

court. Further, where no objection is made to the failure of Progressive to submit the

transcript exhibits, the decision to consider the deposition and hearing transcript as

presented, is wholly within the court’s discretion. “[A] party’s failure to object to the

propriety of evidence submitted in support of a motion for summary judgment constitutes

a waiver of any alleged error in the consideration of such evidence.” Abbott v. Sears,

Roebuck & Co., 11th Dist. Trumbull No. 2003-T-0085, 2004-Ohio-5106, ¶ 15.
      {¶35}    The record also contains substantial evidence supporting an allopathic

cause of the alleged fall in this case. During Samuel’s deposition, Samuel refuted the

Hillcrest emergency room records of the incident. Samuel denied informing Hillcrest

that she was not sure if she tripped, was just dizzy or both, that she had been suffering

from chronic dizziness for more than a week, and that she was scheduled to have a

magnetic resonance imaging (“MRI”) scan the following week to determine the cause.

      {¶36}    The deposition testimony recites consultations with several physicians,

including March 10, 2014 medical documentation referencing a history of dizziness and

blurred vision for the past five to six months. A March 19, 2014 email from Samuel to

two LOA employees provides, “It is already known that I am having vision problems and

problems with being dizzy. * * * When these things happen, I can’t make myself see or

stop being dizzy.”

      {¶37}    We find that, viewed in a light most favorable to Samuel, there are no

genuine issues of material fact.           Rolsen, 8th Dist. Cuyahoga No. 104431,

2016-Ohio-8304, ¶ 5.

      {¶38}    The trial court’s order is affirmed.

      It is ordered that appellee recover from appellants 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.



__________________________________________
ANITA LASTER MAYS, JUDGE

PATRICIA ANN BLACKMON, J., CONCURS;
EILEEN T. GALLAGHER, P.J., CONCURS IN JUDGMENT ONLY
