Maynard v. H.A.M. Landscaping, Inc.

{¶ 37} I respectfully concur in judgment only for the reasons that follow.

A. Negligence Claim

{¶ 38} One of the underlying questions here is whether plaintiffs injuries occurred "in the course ofor "ar[ose] out of employment.² The majority opinion observes that for a workers' compensation claim to be compensable, both of these criteria must be met, but that only one of these two requirements need be satisfied in order for an employer to receive statutory immunity against a negligence claim. The majority opinion, however, never clarifies which of these conditions was satisfied.³ Because this court has ruled that the employer is immune on this matter, the court should specify that the necessary conditions were met and how.

Standard to Determine Immunity

{¶ 39} Instead of ruling on the criteria it specifies, the majority opinion appears to move to a different standard for determining the employer's immunity: compliance. Specifically, the majority holds that "[c]ases construing R.C.4123.74 have held this statute provides immunity to employers from liability to employees so long as the employer was in full compliance with the workers' compensation statutes at the time of the accident." For the majority, the focus is on the Industrial Commission certifying compliance.

{¶ 40} An employer is not entitled, however, to absolute immunity; for example, an employer is not immune to sexual-harassment complaints. Kerans v. Porter PaintCo. (1991), 61 Ohio St.3d 486, 575 N.E.2d 428. ExplainingKerans, the Supreme Court of Ohio stated that "victims of sexual harassment had a common-law remedy. Thus this court held that a purely psychological injury suffered in the workplace is compensable in the common law." Bunger v.Lawson Co. (1998), 82 Ohio St.3d 463, 465, 696 N.E.2d 1029. In Bunger, the lower courts had concluded that an employee could not receive workers' compensation benefits because her psychological condition did not result from a physical injury. The lower courts further determined that the employee could not maintain a negligence action against her employer because her condition arose during the course and scope of her employment with a complying employer. The Supreme Court reversed, however, explaining that because her psychological injuries were not included within the statutory definition of "injury," the employer was not immune to liability for such injuries under R.C. 4123.74. Thus, the court held that the employer could seek redress under the common law. Therefore, there are exceptions to employer immunity even when the employer is fully compliant.⁴

{¶ 41} Besides the statutory exceptions to employer immunity, the language of R.C. 4123.74 qualifies the immunity that the complying employer is entitled to: the immunity extends to injuries "received or contracted by any employee in the course of or arising out of his employment."

{¶ 42} In support of its conclusion that defendant is entitled to statutory immunity because it is a complying employer, the majority cites Bridges v. Natl. Eng. Contracting Co., 49 Ohio St.3d 108, 551 N.E.2d 163.Bridges, however, qualified that the defendant was a "complying employer entitled to the immunity provided inR.C. 4123.74." (Emphasis added.) Bridges never explained this qualification, however, because the issue inBridges was whether an employer is complying if it does not list the employee on the payroll that provides the basis for paying premiums. The Ohio Supreme Court reaffirmed that "standing alone, the failure of an employer who has otherwise complied to include one or more employees on a payroll report ``is not an omission which will deprive an employer of immunity.'" Bridges, 49 Ohio St.3d at 116,551 N.E.2d 163, quoting Perry v. S.S. Steel Processing Corp. (1987), 40 Ohio App.3d 198, 200, 532 N.E.2d 783, 785. Such an omission is not the issue in the case at bar. AndBridges should not be extended beyond that question, especially because the case specifically qualified the immunity as that "provided in R.C. 4123.74."

{¶ 43} The majority also cites Fuhrmanv. Garrison Feist Constr. Co., Hamilton App. Nos. C-000063 and C-000080, 2000 WL 1838031. The central issue inFuhrman also was whether the employer was in compliance. After the worker's claim was allowed, the employer appealed to a district hearing officer of the commission and claimed that the worker was an independent contractor. In a pending tort action, the employer alleged immunity and supported its claim with an affidavit from a Bureau of Workers' Compensation employee who stated that its records indicated that the employer was a complying employer. In response, the worker added an intentional-tort claim and reported that an audit showed that the employer had failed to pay any workers' compensation premiums on this worker's behalf. The trial court implicitly concluded that the worker was an employee and determined that the employer was complying. On that basis, the lower court held that the employer was immune to the worker's claims, except for the claim in intentional tort, which the court rejected on different grounds.

{¶ 44} The issue before the appellate court inFuhrman was whether the trial court properly determined that the worker was not an independent contractor and whether the employer was complying. The court held that "an employer's failure to include a particular injured employee in a required payroll report does not deprive the employer of its statutory immunity from a civil action brought by the employee in the absence of a final determination by the commission that the employer is a noncomplying employer who has not settled its liability to the State Insurance Fund." The issue inFuhrman was whether the court could conclude that the employer is immune when the employee fails to produce sufficient evidence to rebut the employer's proof of compliance. The case cannot be extended beyond that principle. Compliance is not at issue in the case at bar. Thus, Fuhrman is not helpful.

{¶ 45} The majority opinion also citesCatalano v. City of Lorain, 161 Ohio App.3d 841,2005-Ohio-3298, 832 N.E.2d 134. In Catalano, the employee was specifically held to be acting within the scope of his employment when he was injured and received workers' compensation benefits for his injuries. He then additionally sued his employer for negligence in failing to provide a safe working environment. In the case at bar, however, the employee was initially denied workers' compensation benefits. Thus,Catalano does not help to clarify the particular immunity invoked from the facts in the case at bar.

{¶ 46} The majority cites the case of Kaplanv. Mayfield, Jefferson App. No. 86-J-25, 1987 WL 14030, to demonstrate that "not all injuries having an association with the workplace are compensable." This principle is true. However, this principle does not apply for the same reasons here. In Kaplan, the employee argued that his angina was caused by his employment. The court denied that his workers' compensation claim was compensable, because his expert testified only that the employee was suffering from a progressive coronary disease, not that his employment caused his angina. The appellate court explained: "[I]t was essential that he prove not that the angina episode was an injury but rather * * * that his conditions of employment aggravated a pre-existing condition resulting in an injury necessitating medical care." The court further observed that the angina episode left no permanent damage of any kind and that his electrocardiogram was essentially normal.

{¶ 47} In the case at bar, however, the employee's doctor stated in an affidavit that the employee's "hypoglycemia, and therefore the seizure, was a direct result of the strenuous physical work activity Mr. Maynard was performing in a relatively warm environment." This expert further stated that as a result of this seizure, Maynard suffered a fracture when he fell from the truck onto the pavement. The doctor in the case at bar clearly met the requirements articulated, but not met, in the Kaplan case.

{¶ 48} Again, I return to my fundamental disagreement with the majority opinion: its failure to explain precisely whether the injury "was received or contracted by the employee in the course of or arising out of his employment." R.C. 4123.74.⁵

{¶ 49} As to whether the employee was in the course of his employment, the record shows that the employee suffered a seizure while sitting in a company truck. He was in that truck because having just left one task for his employer, he was en route to another task assigned by his supervisor. It was his supervisor who decided to stop and eat lunch, an event that the employee did not participate in. The record shows, moreover, that he was on the clock.

{¶ 50} Second, as to a causal connection between his injury and his employment, the record shows that a doctor's affidavit stated that the employee's "hypoglycemia, and therefore the seizure, was a direct result of the strenuous physical work activity Mr. Maynard was performing in a relatively warm environment." This expert further stated that as a result of this seizure, Maynard suffered a fracture when he fell from the truck onto the pavement. And he fell from the truck as a result of a coemployee opening the truck door.

{¶ 51} We should address this evidence. I would hold that the record before this court demonstrates sufficient evidence to grant a motion for summary judgment for the employer's immunity based on the employee's injury beingreceived and contracted by the employee in the course of andarising out of his employment.

B. Intentional-Tort Claim

{¶ 52} As to the intentional-tort claim, I agree that there is not a sufficient basis to allow this issue to go to a jury. However, I would add that ignoring the explicit instruction in the company manual to call for emergency help immediately upon observing a worker with altered consciousness is significant. It compromises any of the foreman's actions that might be imputed to the employer.

{¶ 53} For the above reasons, I concur in judgment only.

² The statute granting immunity actually says "received or contracted by any employee in the course of or arising out of his employment." R.C. 4123.74.

³ Nor did the common pleas court address this point.

⁴ For a more subtle discussion of immunity, see Wasil, Mastrangelo, and DeRose, Ohio Workers' Compensation Law (2004).

⁵ I also note that similar findings would have been necessary in the workers' compensation claim and, thus, the workers' compensation appeal should have been consolidated with the case at bar to ensure that no contradictory findings occurred.