Oral Argument Preview: Dual Intent in Workers’ Compensation? Visiting Nurse Ass’n of Mid-Ohio v. Friebel

Update: On October 21, 2014, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On April 9, 2014, the Supreme Court of Ohio will hear oral argument in the case of Visiting Nurse Association of Mid-Ohio v. Friebel, 2013-0892.  At issue is whether an Ohio worker’s compensation claimant can have “dual intent,” simultaneously being on a personal errand and acting “in the course of” and “arising out of” their employment. This case will be argued at the University of Toledo College of Law as part of the Court’s off-site program.

Case Background

 Tamara Friebel provided in-home health care services to clients of Visiting Nurse Association of Mid-Ohio (VNA).  Her typical duties consisted of driving from patient home to patient home to provide health services.  She used her personal vehicle to travel to patient homes and received travel and mileage compensation for weekend travel from her home to the first patient’s home until she returned back to her home from the last patient’s home.

On Saturday, January 22, 2011, Friebel was scheduled to visit a patient’s home.  On her way to the patient’s home, Friebel planned to drop her children and their friends off at the mall.  After she dropped them off, she intended to travel to her first appointment.  The mall was along one of the possible routes to Friebel’s first patient’s home.  While stopped at a traffic light at the corner of the mall entrance, Friebel was hit from behind.  She sustained injuries to her neck and sought the right to receive  worker’s compensation benefits for her injury.

The Bureau of Worker’s Compensation (BWC) tentatively allowed Friebel’s claim.  Subsequently, a district hearing officer issued an order finding that Friebel was a fixed situs employee and did not begin her substantial employment until she arrived at her first patient’s home, and thus was not in the course and scope of her employment at the time of the accident.  A staff hearing officer vacated the district hearing officer’s order and allowed Friebel’s claim.  VNA appealed to the Richland County Common Pleas Court.

The trial court granted summary judgment in favor of VNA, finding, as a matter of law, that Friebel’s injury did not arise out of her employment and did not occur in the course of her employment because, as a matter of undisputed fact, she was on a personal errand when the injury occurred.  Friebel appealed the decision.

The Fifth District Court of Appeals reversed in a 2-1 decision, finding that the trial court erred as a matter of law in determining Freibel was not entitled to participate in the workers’ compensation fund. The appeals court found, as a matter of law, that Friebel had “dual intent” of being simultaneously on a personal errand and in the course of her employment, that her injury arose out of her employment, and that she was not a fixed situs employee.

Key Statute and Precedent

R.C. 4123.01(C) states that injury means 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.

Lord v. Daugherty, 66 Ohio St. 2d 441 (1981)(in deciding workers’ compensation benefits, there must be a sufficient “causal connection” to justify participation dependent on the totality of the facts and circumstances of the accident.  Such circumstances include: (1) the proximity of the scene 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.)

Fisher v. Mayfield, 49 Ohio St. 275 (1990), (establishes a two-prong approach to determine compensability.  First, the injury must be received “in the course of” one’s employment – pursuant to an undertaking consistent with the employee’s contract for hire that is related to her employment.  Second, the injury must “arise out of” the individual’s employment, a causal nexus that depends on the totality of the circumstances, including, the proximity of the accident to the place of employment, the degree of the employer’s control over the scene, and the benefit the employer received from the injured employees presence at the scene of the accident.)

Ruckman v. Cubby Drilling, Inc., 81 Ohio St. 3d 117 (1998), (in determining whether an employee is a fixed situs employee and within the “coming and going” rule, the focus is on whether the employee commences a substantial part of her employment duties only after arriving at a specific and identifiable work place designated by her employer.)

VNA’s Argument

VNA argues that the doctrine of “dual intent” does not exist in Ohio worker’s compensation law.  That doctrine was long ago considered and rejected by the Supreme Court of Ohio, and the matter should be analyzed under the “in the course of” and “arising out of” tests. Applying these appropriate tests, Friebel’s claim is not compensable.  Friebel was not “in the course of” her employment when the injury occurred.  Friebel was not acting in a manner consistent with her employment with VNA when her injury occurred.  At the time of her injury, Friebel’s sole undertaking was to transport her children to the mall, not to provide health services.  Additionally, Friebel’s injury did not “arise out of” her employment.  The sole fact that Friebel received travel and mileage compensation is not dispositive, and Friebel has failed to demonstrate any of the factors outlined in Fisher.  The accident occurred on a public highway away from VNA’s place of business, the patient’s home, and Friebel’s home; VNA exercised no control over the scene and circumstances of the accident; and VNA did not receive a benefit from Freibel’s presence at the scene.  Although the mall happened to be on her way to work, it is undisputed that at the time of the accident, Friebel was fulfilling a personal purpose.

Finally, VNA argues that Friebel was a fixed situs employee and subject to the “coming and going” rule.  Generally, where an employee has a fixed place of employment and sustains an injury traveling to or from her place of employment, the injury is not causally related to this employment and does not arise out of or in the course of her employment.  Friebel’s substantial job duties began only after she arrived at her patients’ homes.  That she received travel and mileage compensation is irrelevant in determining whether she was within the course of her employment while traveling to a patient’s home.  The special hazard exception to the coming and going rule is inapplicable to Friebel since she would not have been in this location but for her personal errand, and the traffic risks she encountered traveling for her job were not significantly more than the risks the public encounters.

For its second proposition of law, VNA argues that the Fifth District effectively granted summary judgment in favor of Friebel in reversing the trial court and determining, as a matter of law, Friebel was injured in the course of and arising out of her employment.  VNA argues that Friebel never filed a motion for summary judgment and appealed arguing only that there were questions of fact to be resolved.  VNA was without notice or opportunity to defend against summary judgment, and was therefore denied due process.  Lastly, the Fifth District, in effectively granting summary judgment, construed the facts most strongly in favor of Friebel and not VNA.

VNA’s First Proposed Proposition of Law

The doctrine of “dual intent” does not exist in Ohio worker’s compensation law, and the appropriate rule of law to apply is whether or not claimant’s injuries were received “in the course of” and “arising out of” her employment with VNA.

VNA’s Second Proposed Proposition of Law

The appellate court erred in sua sponte entering summary judgment on appeal in favor of the non-moving claimant and against the moving defendant VNA and, in doing so, construing facts in a light most favorable to prevailing claimant.

BWC’s Argument

The BWC is also an appellant in the case. The BWC asks the Court to reject the dual intent standard used by the appeals court, which introduces confusion and decreases predictability in the workers’ compensation system – a result that would be bad for the BWC, litigants, and the courts.   The BWC asks the Court to re-affirm the established framework for resolving this type of workers’ compensation claim, which focuses on objective facts regarding the employment relationship and the employee’s actions. The dual intent approach focuses on a single question – the employee’s intent – instead of engaging in a multifactor analysis and permits potentially any business ingredient to turn an otherwise personal trip into travel covered by the workers’ compensation system.

Not only did the Fifth District pronounce a new, improper standard, it also reached the wrong result in finding that Friebel suffered an injury in the course of and arising out of her employment as a matter of law, thereby essentially resolving the case prematurely in Freibel’s favor.  BWC request that the Court remand the case for a “fresh review” under the proper legal standard, including considerations of factual issues that may still lead to summary judgment.  The BWC states that is takes no position on the ultimate outcome of this case, but simply asks that the correct law be applied.

BWC’s Proposed Proposition of Law

An injury to an employee while traveling is compensable under workers’ compensation law only if an employee’s injury was sustained “in the course of and arising out of” the employment, as defined in R.C. 4123.01(C).  That inquiry turns on the objective facts of the situation, and not upon an employee’s subjective intent.

Friebel’s Argument

Friebel argues that the General Assembly has never adopted such an unyielding restriction as that proposed by VNA that employees must be exclusively and solely engaged in furthering their employer’s business to receive benefits. An employee’s “dual intention” does not automatically exclude a claim for workers’ compensation benefits.  So long as the injury was received “in the course of” and “arose out of” her employment, whether the worker was also furthering a personal objective is not dispositive. Contrary to VNA’s proposition, the Fifth District did not adopt a “dual intent” doctrine, but rather simply remarked that Friebel had dual intentions when she left her home, which does not disqualify her from being in the course of her employment.

Friebel agrees that her claim should be analyzed under the “in the course of” and “arising out of” standard established in R.C. 4123.01(C).  Friebel was traveling from her home to her patient’s home, as she has routinely done before, and simply decided to “kill two birds with one stone.”  Furthermore, the accident occurred along her normal path to the patient’s home, not into the mall.  A “frolic and detour” has never been sufficient, without more, to preclude a finding that an employee was injured in the course and scope of her employment.  The proper question is whether Friebel’s activities, at the time of injury, were sufficiently work related, therefore, there is no need to conduct a “frolic and detour” analysis since Friebel never began the frolic and detour portion of her trip.

Finally, Friebel argues that VNA’s assertion that she is a fixed situs employee is contrary to Ruckman.  A travelling nurse is the “antithesis” of Ruckman’s categorization of fixed situs employment as having a specific and identifiable work place.  Travel was an integral part of Friebel’s employment and she was expected to travel among sixty job sites each week.

As to VNA’s second proposition of law, Friebel asserts that both at trial and on appeal, VNA stated the facts were undisputed.  VNA cannot now claim, when a decision has been rendered against it, that the facts were viewed in a light most favorable to Friebel.  Furthermore, as the nonmoving party, the facts, if there was any dispute, should have been viewed in a light most favorable to Friebel.

Student Contributor: Katlin Rust

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