There have been a number of decisions over the last month which addressed whether an employer was liable for injuries to or caused by an employee while the employee was arguably off duty and even off the employer's premises. Therefore, it seemed to be a good time to review when an employer can find itself in legal trouble because of an employee who was not even at work at the time of the incident.
In the first case, a municipal housing inspector slipped and fell on the ice in a restaurant parking lot while he was walking back to his car following his daily, paid rest/coffee break to complete his trip from his office to a home which he had planned to inspect. Miller v. Administrator, Bureau of Workers' Compensation, 2010-Ohio-1347. The trial court granted summary judgment to the employer on the grounds that the coming-and-going rule precluded coverage for an employee with a fixed site of employment who was coming or going from work. The employee argued that he was still on duty at the time of the accident – albeit on a paid coffee break. The Court of Appeals agreed that while the coming-and-going rule might bar coverage for a similar accident during an unpaid lunch break, it might not bar coverage for paid rest breaks:
However, the same is not true of coffee breaks and other breaks taken for the employee's personal comfort, even when the employee is injured while off of the employer's work premises. . . . Unlike the unpaid lunch break, it is generally accepted that although an employee is not technically performing his work duties during a break, taking a break for personal comfort is deemed to be incidental to the employment and therefore in the course of and arising out of the employment. . . . Thus, in examining whether an off-premises break arises out of and in the course of the employment, the issue cannot be resolved solely through the mere determination of the fixed status of the employment and automatic application of the coming and going rule. The court must inquire into the specific circumstances of the injury to determine work-connectedness. Such factors could include the time of the break, whether the break is a right fixed by the employment contract, whether it is a paid break, whether there are any restrictions as to where the employee can take the break, and whether the employee's activity during the break constituted a
substantial personal deviation.
In addition, the court found that the injury occurred in the course of his employment because he "was required to leave his office building in order to satisfy the duties of his employment. Further, consistent with his employment contract, he was entitled to take a fifteen-minute coffee break at a time and location of his choosing. [He] then sustained an injury at a time when he was engaged in the permissible activities of employment. The risk of his injury was a risk inherently related to the nature of his employment and he would not have sustained the injury had he not been required to leave the office in order to satisfy his work duties." Further, the court found that the accident took place in proximity to his regular place of employment because: he "was at a place he could reasonably be expected to be at the time of injury in light of his employment duties and given that he had not deviated from his employment to engage in some activity of a purely personal nature. In addition, he was at a location that was reasonable in light of the location of the inspection site." The court also found that the employer had some degree of control over the employee because it "had control over the time and place where [he] could take his break and elected not to place any restriction upon [him]." Finally, in a mind-twisting move, the court found that the employer benefitted from the employee's rest break in that the employee would then feel renewed and re-energized to continue working.
Therefore, the court of appeals reversed the employer's summary judgment and directed entry of judgment in favor of the employee.
In the second case, Sammetinger v. Bureau of Workers' Compensation, 2010-Ohio-1500, a construction manager was injured in a single car accident when driving home after his regular shift when his son (a fellow employee) fell asleep while driving the company truck issued to the father/manager. The manager commuted to the Powell worksite from his home in Wapakoneta each day in a truck assigned to him by his employer. However, as a manager, his duties were not limited to the construction shift. He often stayed after work to conduct inventory and frequently ran errands in the company issued truck during and after the construction shift. These errands included picking up gasoline and ice for the crew during his commute and taking home company tools to be stored safely in his garage each night. He also frequently fielded cell phone calls while he was commuting to and from work. On the evening of the accident, he was too tired to drive home and asked his son – a fellow employee – to drive instead. Apparently, the son was sleepy as well, fell asleep during the drive and the father/manager was severely injured.
The father/manager brought, among other things, a claim for workers compensation benefits against his employer and sued the employer's insurance company under the UM/UIM portion of the employer's insurance policy (since their son had been driving a company-owned vehicle). The employer denied that the father/manager had been injured in the course of his employment and, thus, would not be covered by workers compensation. The son argued that he was immune from suit as a fellow employee under the workers' compensation statute. The trial court found that the father/manager's injuries were covered by workers' compensation because he was injured in the scope of his employment, and granted summary judgment to the son on the UM/UIM claim because he was a fellow employee.
To be covered by workers' compensation, the injury must occur in the course of and arise out of the employee's employment.
The phrase "in the course of employment" limits compensable injuries to those sustained by an employee while performing a required duty in the employer's service. "To be entitled to workmen's compensation, a workman need not necessarily be injured in the actual performance of work for his employer." An injury is compensable if it is sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer's business. . . . .
Generally, "an employee with a fixed place of employment, who is injured while traveling to and from the place of employment, is not entitled to compensation under 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, citing Bralley, supra. However, there are exceptions to the general rule barring compensation when the injury occurs while the employee is "coming and going" to and from his place of employment: if the injury occurs in the "zone of employment;" if it was a result of a "special hazard" of the employment; or if, based upon the totality of the circumstances, there is a sufficient causal connection between the injury and the employment to warrant compensation. Moreover, the Ohio Supreme Court has long recognized that exceptions exist to the requirement that the injury must be suffered at or near the place of employment or within the zone of employment:
(1) where the employer, as an incident of the employment, provides the means of transportation to and from the place of employment; * * * and (3) where the employee is charged while on his way to or from his place of employment or at his home with some duty in connection with his employment.
In this case, the parties agreed that the father/manager had a fixed site of employment. Nonetheless, the court found that "he was acting for the benefit of his employer when he was injured and thus entitled to workers' compensation given the totality of the circumstances surrounding his injuries." The Court was particularly influenced by the amount of post-shift activities and the fact the employer had never prohibited post-shift work:
[The father/manager] closed down the masonry work on the high school and loaded up the pick-up truck that was assigned to him by [the employer] with tools and equipment belonging to [the employer] for transport to and safe-keeping in [the father/manager]'s garage at home. Every day on his way home, he stopped for gas, which was needed to operate a number of tools for the construction . . . the following day. He also stopped to purchase ice for the following day because fresh ice was required by contract to be provided by [the employer] to the workers at the site every day. [The father/manager] also refueled his work truck every other day because the truck was needed to provide him with transportation to and from the site, to provide ransportation for other workers who may have needed a ride, and to deliver [the father/manager]'s paperwork to [his boss] in Lima once a week. The truck was also assigned to [the father/manager] for use on errands such as picking up equipment from other [the employer]' job sites to be used at the high school or to make a run to a local hardware store during the day, and to transport the water containers and ice to and from the job site every day. The ice and gas purchases, which always occurred either in Russells Point or Wapakoneta, were made with a credit card provided by [the employer]
{¶31} Once he was home, [the father/manager] parked the truck in his garage in order to protect the tools and equipment in the truck from theft because a fair amount of tools had been stolen from the job site. In addition, [the father/manager] occasionally performed small repairs and maintenance on some of these tools and pieces of equipment at his home. He also cleaned the water containers and re-filled them at his home because the contract required [the employer] to supply fresh water to the workers every day. Often times, he had a significant amount of paperwork with him to complete because he was unable to finish it during the day because his attention was needed in some other function of his job. Therefore, he would complete this paperwork at home.
{¶32} Throughout the day, beginning at approximately 5:00 a.m. and continuing until approximately 10:00 p.m., [the father/manager] received phone calls on his employer-provided cellular phone. As previously noted, these calls were for a variety of work-related issues. Often times these calls occurred in the morning while [the father/manager] was going to the job site or during the afternoon while he was coming home from the job site. He also received work-related calls at his home.
{¶33} Indisputably, with the exception of an occasional call from his wife, all of these actions by [the father/manager] were directly for the benefit of his employer . . . While the location where [the father/manager] bought the ice and gas was of his own choosing, stopping to purchase these items, bringing home the containers to clean them and fill them with fresh water, transporting the tools and equipment for safekeeping, completing his paperwork for timely delivery to [his boss] every week, and receiving and making phone calls whenever and wherever, were all performed solely for [the employer]' benefit and in an effort to further its best interests. In fact, [the father/manager] summarized it best in his deposition: "My scope of employment doesn't end at 3:30 and doesn't start at 7 o'clock. There are responsibilities that go with my position that I can't control that need to be done, and I'm good at what I do, therefore I do it." Once again, [the employer] presented no evidence to contradict this statement by
[the father/manager] or any of the foregoing evidence regarding the work-related use of the company truck by [the father/manager].{¶34} [The employer] also presented no evidence to demonstrate that [the father/manager]'s off-site activities were prohibited by it or that [the father/manager] was ever instructed to complete his tasks in a different manner. Although the credit card receipts would have shown that the gasoline and ice were being purchased at a location over fifty miles away from the job site, as well as the undoubtedly high amount of gasoline that was being purchased to drive the truck from Wapakoneta to the high school and back every day, the record is devoid of any evidence that [the employer] told [the father/manager] to purchase these items closer to the job site and not to use its truck and gasoline for daily transportation to and from his home. To the contrary, [the employer], at a minimum, acquiesced to [the father/manager] making these purchases far from the job site and to using the truck for his daily commute.
{¶35} Further, there is no evidence that [the father/manager] was ever instructed not to deliver his paperwork to [his boss's] home, not to complete it at his home, not to work on, transport, or house any of the equipment at his home, or not to make and receive work-related calls after he left the job site. Rather, the evidence indicates that [the father/manager]'s position as a supervisor required him to shoulder a number of responsibilities, to act in the best interest of [the employer]' business, and to do what was necessary to effectively fulfill his role as supervisor, whether he was at the job site, off the job site, or en route to accomplish one of his many required tasks. Moreover, [the employer] provided him with a vehicle, which he never used for personal business, and a phone to aid him in his duties. In sum, the evidence demonstrates that in many ways, the truck, which was under [the employer]' control, was [the father/manager]'s mobile work place.
{¶36} Furthermore, at the time of the accident, [the father/manager] had not completed his work for the day. The accident occurred at a point located between the [construction site] and Russells Point. Russells Point was one of two locations where [the father/manager] always stopped for gas and ice, the other being in Wapakoneta, which [the father/manager] had yet to reach. Thus, [the father/manager] was still en route to purchase the gasoline and ice for the following day when the accident occurred. He also had yet to clean and fill the water containers for the following day. As was customary for him, he was also transporting a number of tools from the high school to his home for safe-keeping at the time he was injured. In addition, shortly before the accident, [the father/manager] received a work-related call on his cellular phone.
{¶37} In short, [the employer] provided the vehicle in which [the father/manager] was injured as an incident to his employment; at a minimum, [the employer] acquiesced to the performance of some of his job duties being conducted on his way to and from work and at his home; it benefitted from the use of his garage to safely keep the vehicle and a
number of its tools and equipment overnight; and [the employer] required [the father/manager] to handle phone calls related to its business whenever they might occur, including on his drive to and from the job site and at his home. While [the employer] may not have directly paid [the father/manager] for each minute he spent doing its business while en route to and from work and at home, as [the father/manager] admitted he never charged his employer for the time he spent after the job site closed for the day on any phone calls, getting gas and ice, cleaning and filling the water containers, or maintaining and repairing the equipment he transported, this fact is of little consequence in light of the benefit [the employer] undoubtedly received from him.{¶38} Thus, given the broad spectrum of responsibilities that [the father/manager] had as a masonry supervisor for [the employer], as well as the undisputed fact that these responsibilities necessitated him performing some of them away from the high school, including while en route to and at his home, the only reasonable conclusion in examining the totality of the facts and circumstances surrounding [the father/manager]'s injuries is that they occurred in the course of and arising out of his employment for [the employer].
Therefore, the Court of Appeals affirmed summary judgment against the employer on the workers' compensation claim.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
