Ruckman v. Cubby Drilling, Inc. , 81 Ohio St. 3d 117 ( 1998 )

Cook, J.

This case presents the court with two distinct yet interrelated issues: (1) whether the Cubby employees were fixed-situs employees within the meaning of the coming-and-going rule despite the temporary nature of their work assignments and, if they were, (2) whether the employees nevertheless overcame the presumption embodied in the coming-and-going rule by specifically demonstrating that their injuries occurred “in the course of’ and “arose out of’ the employment. We hold that the Cubby employees were fixed-situs employees within the meaning of the coming-and-going rule, but nevertheless demonstrated that their injuries occurred in the course of and arose out of their employment, so as to permit their participation in the Workers’ Compensation Fund.

The coming-and-going rule is a tool used to determine whether an injury suffered by an employee in a traffic accident occurs “in the course of’ and “arise[s] out of’ the employment relationship so as to constitute a compensable injury under R.C. 4123.01(C). “As a general rule, an employee with a fixed place of employment, who is injured while traveling to or from his place of employment, is not entitled to participate in 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, 663, citing Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401 N.E .2d 448. The rationale supporting the coming-and-going rule is that “[t]he constitution and the statute, providing for compensation from a fund created by assessments upon the industry itself, contemplate only those hazards to be encountered by the employe[e] in the discharge of the duties of his employment, and do not embrace risks and hazards, such as those of travel to and from his place of actual employment over streets and highways, which are similarly encountered by the public generally.” Indus. Comm. v. Baker (1933), 127 Ohio St. 345, 188 N.E. 560, paragraph four of the syllabus.

In determining whether an employee is a fixed-situs employee and therefore within the coming-and-going rule, the focus is on whether the employee commences his substantial employment duties only after arriving at a specific and identifiable work place designated by his employer. Indus. Comm. v. Heil (1931), 123 Ohio St. 604, 606-607, 176 N.E. 458, 459; 1 Larson’s Workers’ Compensation Law (1997) 4-194 to 4-200. Accordingly, this court has denied compensation for injuries sustained in the commute to work of a teacher who prepared lesson plans at her home (Indus. Comm. v. Gintert [1934], 128 Ohio St. 129, 190 N.E. 400), a police officer who, by rule, was required to serve in his official capacity whenever needed but typically started work only after checking in at a station house (Simerlink v. Young [1961], 172 Ohio St. 427, 17 O.O.2d 376, 178 N.E.2d 168), a products-control manager who occasionally took work home and remained on call twenty-four hours a day (Lohnes v. Young [1963], 175 Ohio St. 291, 25 O.O.2d 136, 194 N.E.2d 428), and a slaughterhouse superintendent whose employer provided compensation for travel from his home to the plant. (Heil, supra.)

The focus remains the same even though the employee may be reassigned to a different work place monthly, weekly, or even daily. Despite periodic relocation of job sites, each particular job site may constitute a fixed place of employment. See Demko v. Admr. of Workers’ Comp. (Oct. 7, 1994), Portage App. No. 93-P-0067, unreported, at 4, 1994 WL 587963; Hawkins v. Connor (Aug. 12, 1983), Mercer App. No. 10-82-11, unreported, at 10, 1983 WL 7317.

The evidence demonstrates that the riggers here had no duties to perform away from the drilling sites to which they were assigned. The riggers’ workday began and ended at the drilling sites. Accordingly, although work at each drilling site had limited duration, it was a fixed work site within the meaning of the coming-and-going rule.

Classification of the riggers as fixed-situs employees, however,' does not end our inquiry. While the coming-and-going rule works well in most of its applications, a claimant may avoid its force in the rare circumstance where he can, nevertheless, demonstrate that he received an injury in the course of and arising out of his employment. See MTD Products, supra, 61 Ohio St.3d 66, 572 N.E.2d 661.

IN THE COURSE OF EMPLOYMENT

As this court stated in Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, 551 N.E.2d 1271, 1274, the statutory requirement that an injury be in the course of employment involves the time, place, and circumstances of the injury. Time, place, and circumstance, however, are factors used to determine whether the required nexus exists between the employment relationship and the injurious activity; they are not, in themselves, the ultimate object of a course-of-employment inquiry.

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. Indus. Comm. v. Gintert (1934), 128 Ohio St. 129, 133-134, 190 N.E. 400, 403. “To be entitled to workmen’s compensation, a workman need not necessarily be injured in the actual performance of work for his employer.” Sebek v. Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693, 36 O.O. 282, 76 N.E.2d 892, paragraph three of the syllabus. 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. Kohlmayer v. Keller (1970), 24 Ohio St.2d 10, 12, 53 O.O.2d 6, 7, 263 N.E.2d 231, 233. In the normal context, an employee’s commute to a fixed work site bears no meaningful relation to his employment contract and serves no purpose of the employer’s business. That is not the case, however, where, as here, the employee travels to the premises of one of his employer’s customers to satisfy a business obligation. Under the standard announced by this court in Indus. Comm. v. Bateman (1933), 126 Ohio St. 279, 185 N.E. 50, the riggers here have established the required relationship between employment and injury to satisfy the course-of-employment requirement:

“In order to avail himself of the provisions of our compensation law, the injuries sustained by the employe[e], must have been ‘occasioned in the course of his employment. * * * [I]f the injuries are sustained [off premises], the employe[e], acting within the scope of his employment, must, at the time of his injury, have been engaged in the promotion of his employer’s business and in the furtherance of his affairs.” Id. at paragraph two of the syllabus.

The nature of the rigging business requires that drilling be done on a customer’s premises. That is a necessary condition of the work contract. The riggers set up on a customer’s premises, drill a well and, after completion, disassemble the derrick for transport to the next job site. Consequently, while coming to and going from a customer’s premises, these employees are engaged in the promotion and furtherance of their employer’s business as a condition of their employment. Accordingly, their travel is in the course of their employment.¹

ARISING OUT OF EMPLOYMENT

Even though the ■ riggers’ travel meets the “in the course of employment” requirement under the foregoing analysis, it will fail the definition of injury under R.C. 4123.01(C) if it cannot be said to also arise out of the employment. Satisfaction of both statutory elements is a prerequisite to recovery from the fund. Fisher, 49 Ohio St.3d at 277, 551 N.E.2d at 1274. “The ‘arising out of element * * * contemplates a causal connection between the injury and the employment.” Id. at 277-278, 551 N.E.2d at 1274.

APPLICATION OF THE LORD TEST

In Fisher, id. at 277, 551 N.E.2d at 1274, this court reaffirmed use of the Lord v. Daugherty (1981), 66 Ohio St.2d 441, 20 O.O.3d 376, 423 N.E.2d 96, “totality of the circumstances” test to determine whether there exists a sufficient causal connection between injury and employment to justify a claimant’s participation in the fund. That test requires primary analysis of the following facts and circumstances: “(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.” Id. at the syllabus.

Application of the Lord factors to the present facts does not support compensation. Each accident occurred some distance away from the assigned work site. Compare Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401 N.E.2d 448 (denying compensation where the accident occurred one-third of a mile from the employer’s plant). The employer exercised no control over the public roadways upon which the accidents occurred. Compare MTD Products, supra, 61 Ohio St.3d at 70, 572 N.E.2d at 665 (stating that the employer therein “did not have control over the scene of the accident: it controlled neither the public street on which the accident occurred nor the negligent driver who caused the accident”). Finally, the riggers’ presence at the scene of the accident served-little benefit to the employer. Simply put, at the time of the accidents, none of the riggers had yet arrived at a place where the work was to be performed. Although the riggers’ travel was necessitated by the employer’s business obligations, the accident did not occur at a location where the riggers could carry on their employer’s business.

ALTERNATE METHODS OF PROVING CAUSALITY

An employee’s failure to satisfy the three enumerated factors of the Lord test, however, does not foreclose further consideration. When applying the Lord test the enumerated factors are not intended to be exhaustive and the totality-of-the-circumstances test may continue to evolve. Fisher, supra, 49 Ohio St.3d at 279, 551 N.E.2d at 1275, fn. 2. “For example, the recreational activity cases have developed a unique group of tests, as well as the so-called ‘coming and going’ cases. * * * [WJorkers’ compensation cases are, to a large extent, very fact specific. As such, no one test or analysis can be said to apply to each and every factual possibility.” Id. at 280, 551 N.E.2d at 1276.

In MTD Products, supra, 61 Ohio St.3d at 69-70, 572 N.E.2d at 664-665, another coming-and-going case, this court applied the Lord three-part test as but one of the possible tests for determining whether the employee demonstrated the required causal connection to satisfy the “arising out of’ element of R.C. 4123.01(C). The court also considered whether the fixed-situs employee therein fell within the “zone of employment” or the then newly recognized “special hazard” exception to the coming-and-going rule so as to satisfy R.C. 4123.01(C).

THE SPECIAL HAZARD RULE

In denying recovery under the “special hazard” rule, the MTD Products court noted that the risk encountered by the employee therein — a left turn into the employer’s premises across traffic on a congested city street — was a risk neither “ ‘distinctive in nature [n]or quantitatively greater than the risk common to the public.’” Id., 61 Ohio St.3d at 69, 572 N.E.2d at 664, quoting Littlefield v. Pillsbury Co. (1983), 6 Ohio St.3d 389, 6 OBR 439, 453 N.E.2d 570, syllabus. The court, however, preserved the special hazard rule set forth in Littlefield to the extent that it was not in conflict with that opinion. Id. at 67-68, 572 N.E.2d at 663.

The MTD Products court applied the special hazard rule as a test of causality only. It did not specifically analyze whether the employee therein was sufficiently in the course of his employment so as to satisfy R.C. 4123.01(C). Because R.C. 4123.01(C) requires an employee to satisfy both its “in the course of’ and “arising out of’ elements to participate in the Workers’ Compensation Fund, the court’s conclusion that the employee’s injury did not “arise out of’ the employment decided the issue.

Treatment of the special hazard rule as a test of causality is consistent with the stated purpose behind the coming-and-going rule that workers’ compensation insurance does “not embrace risks and hazards, such as those of travel to and from his place of actual employment over streets and highways, which are similarly encountered by the public generally.” Baker, supra, 127 Ohio St. 345, 188 N.E. 560, paragraph four of the syllabus.

THE LITTLEFIELD SYLLABUS STATES A RULE OF CAUSATION ONLY

The special hazard rule set forth in the Littlefield syllabus accurately states a causal relation between employment and injury that is sufficient to escape the coming-and-going rule. That syllabus, however, does not address the degree to which the employee’s activity when injured must relate to his employment.² Because statutory law requires an injury to be suffered in the course of employment and to arise out of the employment, the syllabus statement does not state all that is required to avoid the coming-and-going rule.³

Accordingly, we now expressly limit the syllabus of Littlefield to state a test for determining only whether a traffic injury suffered by a fixed-situs employee while coming to or going from work arises out of the employment relationship. If an employee’s injury occurs in the course of his employment, yet fails the Lord three-part test for causation, a fixed-situs employee may, nevertheless, demonstrate the required causal connection between employment and injury under the special hazard rule of causation.

APPLICATION OF THE SPECIAL HAZARD RULE

In this case, multiple factors work in combination to make travel to the temporary drilling sites a special hazard of employment. Two such factors are the temporary nature and constantly changing location of the riggers’ fixed work sites. Cubby regularly dispatched its employees over a three-state area for work assignments typically lasting somewhere between three and ten days. Unlike the typical fixed-situs employee, the Cubby riggers did not know the location of future assignments, and it was impossible for them to fix their commute in relation to these remote work sites. Cubby’s customers determined the drilling sites and Cubby dispatched its employees to these locations without regard to the distance the riggers would need to travel. While Cubby paid a bonus to its employees based on how far they worked away from the company’s Midvale base, under normal circumstances that bonus was minimal and did not contemplate overnight expenses. Instead, Cubby expected its workers to commute back and forth to the job site on a daily basis or arrange and pay for their own overnight accommodations.

A third factor pertinent here is the distance of the riggers’ commutes to the remote work sites. As a condition of their employment, Cubby required the riggers to report to work sites separated by significant distances, both from each other and from the Midvale home base. Although the riggers worked within an area of a one-day drive, that area was not so limited ás to bring the riggers’ travel to the varying work sites in line with work commutes common to the public.

For most employees, commuting distance to a fixed work site is largely a personal choice. Any increased risk due a longer commute is due more to the employee’s choice of where he or she wants to live than the employer’s choice of where it wants to locate its business. Accordingly, it usually is not the employment relationship that exposes an employee to the greater risk associated with a long commute. Moreover, the risks associated with highway travel are not distinctive in nature from those faced by the public in general. Here, however, the employment relationship dictates that the riggers undertake interstate and lengthy intrastate commutes, thereby significantly increasing their exposure to traffic risks associated with highway travel. Accordingly, because of the combination of all these factors, the riggers have established a risk quantitatively greater than risks common to the public.

R.C. 4123.452

Finally, Cubby asserts that the employees’ ineligibility to participate in the Workers’ Compensation Fund is expressly established by R.C. 4123.452, which states:

“As used in this section, ‘ridesharing arrangement’ means the transportation of persons in a motor vehicle where such transportation is incidental to another purpose of a volunteer driver and includes ridesharing arrangements known as carpools, vanpools and buspools.

“No compensation shall be allowed under this chapter for any employee injured while participating in a ridesharing arrangement between his place of residence and place of employment or termini near such places. An injury occurring while an employee is voluntarily participating in a ridesharing arrangement is not considered in the course of employment.”

Cubby would have us interpret this section as a rule of exclusion — that even if we normally would consider the travel resulting in an employee’s injury to fall within the course of employment, the employee’s participation in a voluntary ridesharing arrangement forecloses recovery of workers’ compensation benefits. In interpreting statutes, however, we are to presume that a just and reasonable result is intended. R.C. 1.47; see, also, State ex rel. Dispatch Printing Co. v. Wells (1985), 18 Ohio St.3d 382, 384, 18 OBR 437, 439, 481 N.E.2d 632, 634 (noting the axiom of judicial interpretation that “statutes be construed to avoid unreasonable or absurd consequences”). Additionally, R.C. 4123.95 provides that “[s]ections 4123.01 to 4123.94 * * * of the Ohio Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees.”

Cubby discounts both of these statutory considerations. Under Cubby’s interpretation, the statute would strip employees of their statutory right to participate in the Workers’ Compensation Fund solely on the basis of their participation in ridesharing, an activity that the legislature has expressly directed the Directors of Transportation and Development to promote (R.C. 5501.031[F]) and has authorized the use of cars owned or leased by state agencies and political subdivisions to further (R.C. 1551.25[B]).

Instead of a rule of exclusion, R.C. 4123.452 establishes that voluntary participation in a ridesharing arrangement is not an act that converts the personal nature of the typical work commute into an activity that is in the course of employment as contemplated in R.C. 4123.01(C). Accordingly, R.C. 4123.452 does not alter our disposition of this case.

CONCLUSION

We hold that a fixed-situs employee is entitled to workers’ compensation benefits for injuries occurring while coming and going from or to his or her place of employment where the travel serves a function of the employer’s business and creates a risk that is distinctive in nature from or quantitatively greater than risks common to the public. Accordingly, we affirm the appellate court judgments.

Judgments affirmed.

Moyer, C.J., F.E. Sweeney and Pfeifer, JJ., concur. Lundberg Stratton, J., concurs in the syllabus and judgment: Douglas and Resnick, JJ., concur in judgment only.

1 . Although all of the parties to this action argued the significance of the per diem bonus paid to Cubby employees in relation to the course-of-employment inquiry, payment of that bonus has little influence on our determination. Although payment for travel is commonly considered to be a key factor in determining whether an employee was in the course of his or her employment while traveling to a job site (see, generally, 1 Larson at 4-255 to 4-261), characterization of such payment is far too malleable to serve as a leading factor in the course-of-employment inquiry. See Heil, supra (denying compensation to an employee who was injured while commuting to work despite the fact that his employer compensated him for the commute). Regardless of whether travel is a necessary component of an employee’s service to his employer, compensation may be made part of his benefit package, just as an employer may choose to pay a parking allowance. Likewise, even where travel undoubtedly serves a function of the employment relationship, an employer may choose to compensate the employee for his travel indirectly, with a higher base or hourly salary. Here, we simply note that Cubby’s payment of the per diem bonus is not inconsistent with our course-of-employment conclusion.

2 . The Littlefield court did, in fact, discuss the work-relatedness of the claimant’s activity at the time of the accident in the body of its opinion. The court noted that the injury occurred during a regularly scheduled meal break, while the claimant was returning from a local restaurant. The Littlefield, court additionally noted that the employer sometimes paid the restaurant directly for meals consumed by its employees during work hours. Additionally, a concurrence written by Justice Clifford F. Brown specifically distinguished the case from Bralley, supra, on the basis of time, place, and circumstance. The MTD Products court, however, did not deem these facts a sufficient basis to distinguish its case — involving an employee engaged in his initial commute to work — from Littlefield.

3 . We acknowledge that a number of jurisdictions follow a “quantum theory” of work-connection, allowing the strength of either the “in the course of’ or the “arising out of’ element to make up for the weakness of the other element. 2 Larson at 5-476 to 5-478. The theory is, in part, based on the often overlapping nature of the two elements. In Fisher, supra, 49 Ohio St.3d at 277, 551 N.E.2d at 1274, this court noted that both elements merge into a test of work-connectedness, but did not waiver from its statement that both elements, nevertheless, must be satisfied befor’e compensation will be allowed.