What’s on their Minds: 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.

On April 9, 2014, the Supreme Court of Ohio heard 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” the claimant’s employment. This case was 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. On weekends, she was paid for travel time and mileage from the time she left her home to the time she returned to her home. She did not receive that compensation on week days.

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.  Two other routes were also available to her. 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 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 Friebel was not entitled to participate in the workers’ compensation fund. The appeals court found, as a matter of law, that Friebel had the “dual intent” of being simultaneously on a personal errand and in the course and scope of her employment, that her injury arose out of her employment, and that she was not a fixed situs employee.

Read the oral argument preview of this case here.

Key Statute and Precedent

R.C. 4123.01(C) provides that in order for an employee’s injury to be compensable under the workers’ compensation fund, the injury must be “received in the course of, and arising out of, the injured employee’s employment.”

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.)

At Oral Argument

Attorney General’s Argument

The AG’s office, representing the Administrator of the Ohio Bureau of Workers’ Compensation, had asked the Court to realign the Administrator as an appellant, because his legal position aligned him with the VNA in arguing for the reversal of the appellate decision.  The Court did so, and the assistant AG shared time with appellant VNA.  In his argument, Friebel’s lawyer commented that this re-alignment made no sense to him.

Despite the realignment, the AG’s role was more like that of an interpleader, making it very clear the state was taking no position on which side should prevail on the merits of the case. The assistant AG stated that the Bureau’s role was concerned with doctrine, not results. He asked the Court to reverse summary judgment for the claimant, and send the case back to the trial court, where either side could prevail, commenting several times on the thinness of the record in the case.  The AG’s biggest concern was to get rid of the notion of any dual intent doctrine in workers’ compensation law, and to reaffirm the primacy of the Ruckman case.  Pursuant to Ruckman,  the logical way to proceed with the case would be to determine if Friebel was a fixed situs employee, and once that question is answered, then determine if she had deviated from the course and scope of employment.

The assistant AG also asked the Court to note the distinction between commuting- which is what one does before reaching the place where work starts—and traveling, which is moving from job site to job site. The AG noted that an employee can do both in one day.

VNA’s Argument

VNA agreed with Friebel that the facts in this case are not in dispute, and that this case does not need to go back to the trial court. VNA argued that it is undisputed that Friebel left her home with four children in her car, with the plan of taking those children to the mall. After she left the mall she intended to go to her fixed situs of employment, which was at the patient’s home.  She never entered into the course or scope of her employment. The fact that she was compensated for travel on weekends is irrelevant to the determination of whether she was in the course and scope of her employment.  What controls is the activity being performed at the time of the injury.  What was the claimant doing at the time of her accident that benefitted the employer? Driving four children to the mall was not a benefit to VNA; it was a benefit to herself

The dual intent doctrine simply does not exist in Ohio law, and the appellate court was wrong in creating it. In this case, Friebel was  commuting when the accident happened, and thus was not entitled to workers’ compensation benefits. She had never entered the course and scope of her employment because her employment was at the patient’s house.

VNA also argued that procedurally, a court cannot grant summary judgment to a party which did not request it. While Friebel opposed VNA’s motion for summary judgment at trial, she did not file her own cross motion for summary judgment.

Friebel’s Argument

The court of appeals decision is being overdramatized.  That court did not create some new dual intent doctrine.  It followed the traditional approach. It merely added that the fact that Friebel had dual intentions does not keep her from getting benefits. The only issue here is whether Friebel can satisfy the statutory test—in the course of, and arising out of employment—if she can satisfy that test, it doesn’t really matter if she had another objective.  Employees frequently have more than one purpose or motive. The fact that an employee may have a secondary purpose should not prevent the employee from receiving benefits so long as she meets the statutory tests.  Friebel was not a fixed situs employee.  It makes no sense to say that she had sixty different job sites during the course of a week. The fact that she gets paid to travel shows that travel is an integral part of her job duties. If travel is an integral part of the job, the employee is not a fixed situs employee, and the coming and going rule does not apply.

What Was on their Minds

Dual Intent-A New Test or Surplus Language?

Was it the Bureau’s view that this case got off track on dual intent instead of traditional doctrinal principles of course and scope of employment, deviation and fixed situs, asked Justice O’Donnell? (AG’s answer: yes)

Is the Court of Appeals taking the Court down a brand new path, asked Justice O’Neill?

The Appropriate Test

What doctrine is involved here—scope of employment or dual intent, asked Justice O’Donnell? Had the employee deviated from the scope of employment at the time of the incident?

Should the analysis be primary versus secondary purpose, asked Chief Justice O’Connor? Could the Court affirm on alternate grounds? Instead of looking at what the intent was going from point a to b to c, could the Court just apply the old fashioned standards, tried and true, benefit to employer, scope of employment and defer to the court on that?

The court of appeals seems to be suggesting there is a subjective intent that controls. Is the Court being asked to go beyond what is objectively related to employment to what the employee says after the fact? If the Court were to accept that, wouldn’t it be opening up a totally new area which is governed by what an employee says later about what her intent was, asked Justice Lanzinger?

Could the Court just write the opinion in a way that addresses the state’s concerns, by ignoring the dual intent language from the appeals court, asked Justice Pfeifer?

Commuting versus Travelling; Fixed Situs  Employee

Does the Bureau have a position on whether Freibel was or wasn’t a fixed situs employee, asked Justice O ‘Donnell?

How can a travelling nurse be a fixed situs employee when she goes from sick patient to sick patient all day long at their homes? If that is a fixed situs employee, what is the situs, asked Justice O’Neill? If the nurse sees six patients a day, does she have six fixed situses? O’Neill really put the VNA lawyer through his paces with a staccato series of hypotheticals such as, if a nurse lives in Toledo and has a sick patient in Sandusky, if the nurse drives from Toledo to Sandusky isn’t she in the course and scope of her employment? (answer: not necessarily.) But isn’t the nurse bringing her nursing skills to Sandusky, O’Neill asked in rejoinder?  Later he asked whether the mall was between Friebel’s house and the first patient’s house?

Noting that there were so many different ways to talk about the case–dual intent, scope of employment, and the coming and going rule, Justice Lanzinger asked which was the correct way to analyze the case? What if the employment contract includes transportation, agreeing the employee will be paid for driving to various locations? Doesn’t that make the driving within the scope and arising out of employment? How is it determined if a situation that occurs during commuting should be considered arising out of course and scope of employment?

How is a commuter differentiated from a traveler, asked Chief Justice O’Connor?  How does course and scope of employment relate to the classification of commuter versus traveler? Wasn’t the mall en route to Friebel’s employment?

A number of justices asked about hybrid situations, particularly those where an employee is on the phone with the boss while commuting, although that was not the case here.

The Weekend Travel Pay

Chief Justice O’Connor was especially concerned about this, commenting several times about the fact the Friebel was paid for weekend, not weekday travel time and mileage, commenting that she saw that as muddying the waters. Did that make this a unique, or a hybrid situation where on weekends commuting was compensated as a traveler? And wasn’t that weekend work benefitting the employer?

Procedure

Does this case have to go back for a development of the facts in order to answer the legal questions arising from the case, asked Justice Pfeifer? Is the case just not ripe for decision yet?

Don’t we need to send this case back to develop the facts, asked Justice French? At the trial court level, didn’t Friebel oppose summary judgment on the grounds there were factual issues that needed to be decided?

Should this case be remanded for a more for a more traditional, doctrinal explanation, asked Justice O’Donnell? Was VNA saying that under Civ. R. 56 summary judgment could not have been granted to Friebel because she never filed a motion for summary judgment? (answer: yes)

If there is no disagreement about the facts, what is the benefit of sending the case back for some “doctrinal stability,” asked Chief Justice O’Connor?

Are the facts agreed on or not, asked Justice Lanzinger?

How it Looks From the Bleachers

To Professor Bettman

Too close to call, between a remand for further development of the record, and a win for Friebel.

Interestingly, both Friebel and VNA agreed there were no facts in dispute, only the correct application of the existing tests to those facts.  Only the state thought the case needed to go back to more fully develop the record.  But after watching the argument, I think the resolution of the case is between the state’s position and a win for Friebel as a matter of law. (The latter could be procedurally tricky, since Friebel never asked for summary judgment below.)  No justice seemed persuaded by VNA’s argument that it should win as a matter of law. Regardless, there is going to be no new “dual intent” doctrine interjected into traditional workers’ compensation law. That seemed to me like nothing more than an unfortunate choice of words by the appeals court than the creation of a new doctrine.

The justices supporting Friebel’s position (the Chief, and Justice O’Neill and to a lesser extent, Justice Pfeifer) seemed to feel somewhat more strongly about it than those leaning toward remand (Justices Lanzinger, French, and O’Donnell.) Justice O’Donnell in particular seemed to buy state’s argument about the need for clarification for the purpose of “doctrinal stability.” And Justice Lanzinger wasn’t convinced there were no facts in dispute.

Chief Justice O’Connor, and Justices O’Neill and Pfeifer seemed persuaded by Friebel’s argument that the “dual intent” language from the 5th district meant nothing more than the fact that Friebel had dual intentions does not keep her from getting benefits. For the Chief, the weekend but not week day travel pay seemed dispositive of the commute versus travel issue.  Justice O’Neill seemed outraged and incredulous that anyone could consider a visiting nurse, whose job it is to travel from patient home to patient home, a fixed situs employee.

As is her wont, Justice Kennedy asked no questions.  Her vote could tip the case either way.

To Student Contributor Katlin Rust

I think, in the end, this one is going to go to Friebel but I expect a great deal of explaining in this opinion.  The Court, particularly Justice O’Neill, seemed to accept Friebel’s argument that considering her a fixed situs employee with 60 situses is unreasonable.  A majority of the justices also appeared to accept Friebel’s proposition that regardless of the new language used in the Fifth District’s opinion regarding dual intent, the facts and circumstances of her case fit within the “traditional” workers’ compensation framework.

Given that there are no disputed questions of fact in this case, only conclusions based upon those facts, I do not expect the Court to remand the case back for trial.  I do, however, expect the Court to affirm on different, more traditional grounds, thereby clarifying the state of law in Ohio (as requested by the Attorney General) and exacting any potential beginning of the “dual intent doctrine” that has caused such a ruckus in this case.  What really throws a wrench in this case – so to speak – is the absence of a motion for summary judgment from Friebel.  However, with the absence of any issues of material fact, I think the Court will decide the law as applied to the facts, and will allow Friebel to  receive workers’ compensation benefits.

 

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2 Responses to What’s on their Minds: Dual Intent in Workers’ Compensation? Visiting Nurse Ass’n of Mid-Ohio v. Friebel.

  1. Bart Rosenberg says:

    Here are this layman’s points of view and further questions:

    If she’s being paid, even for mileage, she’s working. (She’s getting a 1099). Why she is only paid for weekend mileage seems a grey. Is that a way of paying a “weekend bonus”?

    What if she used public transportation and was injured on the bus?

    If she hadn’t dropped off the kids and went straight to the client, is there then a question? Can her employer/OBWC claim that if she had taken a different route, she would not have been injured, so the fault is entirely hers for choosing the wrong route? (The bread fell with the buttered side down because you buttered the wrong side.) Can the employer prescribe a route and then be held responsible? What if she had dropped the kids off, gone back home and then to the client? And in that case, what would constitute “back home”? Just saying, dual intent or no, fine points of law notwithstanding, it seems she was injured in the course of her duties.

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