On October 21, 2014, the Supreme Court of Ohio handed down a merit decision in Friebel v. Visiting Nurse Assn. of Mid-Ohio, 2014-Ohio-4531. In a 5-2 decision written by Chief Justice Maureen O’Connor, in which Justice Terrence O’Donnell concurred in judgment only, the court held that the dual purpose or dual intent doctrine (the terms are used interchangeably) does not apply in determining eligibility for workers’ compensation benefits in Ohio. Justice Bill O’Neill dissented, joined by Justice Paul Pfeifer. The case was argued April 9, 2014.
Tamara Friebel was employed as a home health nurse by Visiting Nurse Association of Midwest Ohio (VNA). It was her job to provide in-home health care services to VNA clients, which meant a lot of work-related travel. On weekends, Friebel was paid for travel time and mileage from her house to the house of her first patient, for her travel during the day, and for her return home. One Saturday in January of 2011, on the way to the home of her first patient of the day, Friebel decided to take her daughter, son, and two friends to a mall first. While stopped at a traffic light before dropping off her passengers, Friebel was rear-ended and suffered a neck injury. She sought worker’s compensation benefits for this injury.
Should Friebel get her Benefits? The Ping-Pong Game Begins
Yes, said the administrator of the BWC. Claim allowed for a neck sprain.
No, said the district hearing officer for the Industrial Commission. Friebel wasn’t within the course and scope of her employment at the time of the accident. She hadn’t started work yet.
Yes, said the staff hearing officer for the Industrial Commission. It mattered that Friebel was paid time and mileage for travel from her house to the first patient’s house the day of the accident.
No, said the trial court by way of summary judgment when VNA appealed to the court of common pleas of Richland county. Friebel was clearly on a personal errand at the time she was injured.
Yes, said the Fifth District Court of Appeals, but in a split decision. As a matter of law the accident and injury arose out of and occurred in the course of Friebel’s employment. Friebel had a dual intent that day—to drop her patients off at the mall and to travel to her patient’s home. At the time she was injured, she had not diverted from that route.
VNA appealed to the Supreme Court of Ohio, which accepted jurisdiction. Answer from the high court: Maybe.
Key Statute and Precedent
R.C. 4123.01(C), (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.”)
In re Marks v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929) (Establishes the “dual-purpose” doctrine.)
Cardwell v. Indus. Comm., 155 Ohio St. 466 (1951), (a proximate causal relationship between the plaintiff’s employment and the plaintiff’s injuries is essential to justify the award of worker’s compensation to the plaintiff.)
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.)
MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66 (1991), (For employees with a fixed place of employment, the general rule is that the requisite causal connection is absent when an injury occurs while traveling to or from the workplace—the “coming-and-going rule.” )
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 begins a substantial part of her employment duties only after arriving at a specific and identifiable work place designated by her employer. Whether a place of employment is fixed is a fact-specific inquiry. )
No way summary judgment works here. Given the procedural posture of the case, where at each step of the process the previous decision was reversed, once the high court set the law straight, is it any surprise that reasonable minds could differ about the factual dispute in this case?
Even though this is a 5-2 decision, all seven justices agreed that summary judgment should not have been granted to VNA in the case by the trial court, and all seven agree that the proper way to analyze workers’ compensation claims, even for employees on both personal and business matters, is to apply the “in the course of” and “arising out of” tests. The majority and the dissent part company, though, on whether the court of appeals applied those tests, or wrongly applied the dual intent doctrine in this case.
First Principle of Workers’ Compensation
To be compensable, pursuant to R.C. 4123.01(C), an injury must have occurred “in the course of, and arising out of, the injured employee’s employment. Both prongs of this statutory definition must be met.
The “In The Course Of” Prong
This relates to the time, place, and circumstances of the injury. To be compensable, the injuries must be sustained “while engaged in a required employment duty or activity consistent with their contract for hire and logically related to the employer’s business.” Ruckman v. Cubby Drilling, Inc. (see precedent section).
The “Arising Out Of” Prong
This refers to the causal connection between the injury and the job. Whether that causal connection is sufficient depends on the particular facts and circumstances of given case. Some of those factors are proximity of the accident to the job site, the degree of control the employer had over the scene of the accident, and the benefit the employer got from the employee’s presence at the scene of the accident. This list is suggestive, not exhaustive; failure to establish one or more of the listed factors isn’t fatal.
The Coming-and-Going Rule. Fixed Situs or Non-Fixed Situs Employee
For employees with a fixed place of employment, the general rule is that the required causal connection is not met if the injury occurs going to or from the workplace. MTD Prods., Inc. v. Robatin, (syllabus) (see precedent section). But whether a place of employment is fixed depends on the facts and circumstances of the job.
Special Errand Exception to the Coming-and-Going Rule
If an injury occurred because of a special hazard inherent in the employment, or if the totality of the circumstances establishes the causal nexus between the job and the injury, then an exception to the coming-and-going rule may apply.
Conclusion from all this Precedent
“Because workers’ compensation cases are fact specific, no one factor is controlling and “[n]o one test or analysis can be said to apply to each and every factual possibility.” Opinion, ¶ 18
Getting the idea that summary judgment just won’t work in these cases? Good. Read on.
The Dual Purpose Doctrine
Some jurisdictions recognize a dual-purpose or dual-intent doctrine, allowing compensation to an employee injured while travelling for both business and personal reasons.
The majority held that the court had already implicitly rejected the dual purpose doctrine, and now in this case does so expressly.
“[G]iven the fact-specific nature of the workers’ compensation eligibility analysis and the impossibility of crafting a one-size-fits-all test, the dual-intent or dual-purpose doctrine does not have a place in analyzing workers’ compensation claims in Ohio,” O’Connor wrote.
Right and Wrong Way to Analyze Workers’ Compensation Claims of Those Traveling for Business and Personal Reasons
Wrong Way: Applying Dual Purpose Doctrine
Right Way: Applying the “in the course of” and “arising out of” tests. Further, an employee’s subjective intent about the purpose of her travel is not determinative of the issue.
Summary Judgment Inappropriate in this Case
VNA had argued that the court of appeals granted summary judgment to Friebel, even though she hadn’t asked for it, and that was wrong. Rather than get bogged down in the procedural intricacies of that question, the majority just held summary judgment was wrong in this case, period. Questions of fact exist on whether Friebel was a fixed-situs employee, whether she was on a personal errand at the time of the injury, and whether she was travelling her normal route to the patient’s home. So, trial it is for Ms. Friebel, lo these many years later.
Justice O’Neill’s Dissent
First, Justice O’Neill thinks the case should have been dismissed as improvidently allowed, because it is not of great or general interest, and involves no constitutional question.
“I would suggest that this case, an appeal from a summary judgment, simply does not have the sufficient evidentiary record to provide the foundation for a major pronouncement on a subject as complex as “dual intent” in the area of workers’ compensation, “ wrote O’Neill.
He also wrote that it is unclear whether the majority affirms, reverses, or modifies the court of appeals.
Points of Agreement and Disagreement with Majority
O’Neill agrees that the proper tests for employees injured while travelling for personal and business test are the “in the course of ” and “arising out of” test. But he thinks that is exactly the test the Fifth District Court of Appeals applied in the case. While the appeals court used some language that Friebel dually intended to travel both to the mall to drop off her kids and friends and to her patient’s house, the appeals court did not apply the dual intent doctrine, but instead applied the proper and established tests.
“The Fifth District got this case right when it reversed the summary judgment in favor of VNA and remanded this case to the trial court for further proceedings. Likewise, the majority’s decision to remand the case to the trial court is correct. Everyone seems to agree that Friebel, at a minimum, deserves her day in court. However, the court here mischaracterizes the holding of the Fifth District, and to that I object. The Fifth District simply did not reverse the trial court’s summary judgment based on the doctrine of dual intent, “ O’Neill concluded. Justice Pfeifer joined this dissent.
None. Although it could have been this: The dual intent doctrine has no application in a workers’ compensation case in which an employee is injured while on an errand that is both personal and business related. Or some such.
I had called this as too close to call between a remand for further development of the record and a win for Friebel. I also wrote, “Regardless, there is going to be no new “dual intent” doctrine interjected into traditional workers’ compensation law.”
I think part of Justice O’Neill’s dissent is questionable. He thinks it is unclear whether the majority affirms, reverses, or modifies the court of appeals decision. I see it as a reversal, both because the majority thinks the appeals court applied the wrong test, and because that appeals court made a number of findings as a matter of law that the majority thinks are questions of fact.
Justice O’Neill says he agrees that the matter must go back for further proceedings, because the Fifth District held that the trial court erred as a matter of law in granting summary judgment to VNA. But the majority of the appeals court went much further than that. First, it held as a matter of law that Friebel was injured in the course of her employment. And the appeals court majority held that Friebel had satisfied the required causal connection between the injury and her employment to find that the injury arose out of her employment, and thus she had met the causal connection required in Fisher. Finally, the appeals court held as a matter of law that Friebel was not a fixed situs employee and the coming and going rule does not apply to prevent her from participating in the workers’ compensation fund. So, ultimately, even though the appeals court reversed the grant of summary judgment and sent the matter back for further proceedings, it wasn’t to resolve any factual disputes, because it found none. So, I don’t think Justice O’Neill thinks the case should go back for the same reasons the majority does.
On the other hand, I agree with Justice O’Neill that the court of appeals did not use the dual intent doctrine in analyzing Friebel’s entitlement to benefits. As I wrote after argument, that seemed to me like nothing more than an unfortunate choice of words by the appeals court and not the creation of a new doctrine.
Regardless, now that the court has decided there is going to be a trial, I still think Friebel will win, ultimately. Even though the Chief and Justice O’Neill parted company in the court’s opinion, both seemed very sympathetic to her position at argument—O’Connor because of the fact that she was paid for time and travel on weekends, and O’Neill because the nature of her job required travel. I think those facts, plus the fact that she was en route to her first patient appointment when the accident happened will tip the scales in her favor. And after all, as the Chief reminds us in the decision, “the overarching consideration is that the statute must be accorded a liberal construction in favor of awarding benefits.”
We’ll follow the case in our “What Happened on Remand” Section.