Rolsen v. Walgreen Co.

[Cite as Rolsen v. Walgreen Co., 2016-Ohio-8304.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104431
THOMAS J. ROLSEN
PLAINTIFF-APPELLANT
vs.
WALGREEN CO., ET AL.
DEFENDANTS-APPELLEES
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CV-15-852946
BEFORE: S. Gallagher, J., E.A. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 22, 2016
ATTORNEYS FOR APPELLANT
Robert J. Sindyla
Sindyla Law Offices, L.P.A.
7425 Royalton Road
North Royalton, Ohio 44133
Jacqueline Kim Roberts
J.K. Roberts Law Group, Ltd.
17601 W. 130th Street
Suite 4B
North Royalton, Ohio 44133
ATTORNEYS FOR APPELLEES
For Walgreen Co.
Margaret D. Everett
Vorys, Sater, Seymour & Pease, L.L.P.
200 Public Square
Suite 1400
Cleveland, Ohio 44114
For Stephen Buehrer
Mike DeWine
Ohio Attorney General
By: Mark E. Mastrangelo
Assistant Attorney General
615 West Superior Avenue, 11th Floor
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Thomas J. Rolsen believes the denial of his claim for workers’
compensation benefits, which was filed in response to an adverse reaction sustained from
an inoculation voluntarily received at his employer’s place of business, was erroneous.
Finding no merit to the appeal, we affirm.
{¶2} The trial court granted summary judgment in favor of Walgreens, the
employer, and against Rolsen. The evidence on appeal is limited to Rolsen’s affidavit,
attached to his brief in opposition to summary judgment. No other evidentiary materials
were included in the appellate record. In that affidavit, Rolsen averred that he received a
pneumonia vaccination while he was on duty as a manager of a Walgreens retail store.
Walgreens offered vaccinations to the public and allowed its employees to partake for no
charge. Rolsen was not required to get any inoculations as a term of employment. After
receiving the injection, Rolsen experienced an adverse reaction. Ultimately, Rolsen was
diagnosed with cellulitis, a known potential side effect of the particular vaccination at
issue.
{¶3} Rolsen filed for workers’ compensation benefits because he received the
vaccination during work hours at his employer’s facility. The industrial commission
denied his claim. The denials were attached to the complaint. The staff hearing officer
found that Rolsen did not sustain an injury in the course of his employment because
receiving a vaccination was a personal decision and not mandated by the terms of his
employment. Having failed to obtain benefits administratively, Rolsen filed an
administrative appeal. The trial court granted summary judgment against Rolsen, finding
that Rolsen “was not under a ‘duty’ to receive [the] vaccine; there is not a ‘causal
connection’ between his injury and his employment; and this injury was not in the ‘course
of his employment’ as a manager” as a matter of law.
{¶4} Rolsen believes that summary judgment was inappropriate for several
reasons: (1) genuine issues of material fact remain to be resolved by the trier of fact; (2)
the trial court failed “to observe the requirement set forth in R.C. 4123.95 to construe”
workers’ compensation statutes liberally; and (3) the trial court and staff hearing officer
erred by finding that the employee’s personal decision to obtain the inoculation was not
part of the analysis to determine whether an injury arose from employment. None of
Rolsen’s arguments have merit.
{¶5} Appellate review of summary judgment is de novo, governed by the standard
set forth in Civ.R. 56. Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833
N.E.2d 712, ¶ 8. “Summary judgment may be granted only when (1) there is no genuine
issue of material fact, (2) the moving party is entitled to judgment as a matter of law, and
(3) viewing the evidence most strongly in favor of the nonmoving party, reasonable minds
can come to but one conclusion and that conclusion is adverse to the nonmoving party.”
Marusa v. Erie Ins. Co., 136 Ohio St.3d 118, 2013-Ohio-1957, 991 N.E.2d 232, ¶ 7. Not
only is the appellate record incomplete — the only evidence included was attached to
Rolsen’s affidavit that was attached to his brief in opposition to summary judgment —
but Walgreens has not challenged Rolsen’s evidence. In short, there are no facts in
dispute, much less material ones, and the only issue advanced in the summary judgment
proceedings was the application of law to the undisputed facts. The trial court did not err
by deeming the facts to be undisputed.
{¶6} We also need not dwell on Rolsen’s claim that the trial court failed to
construe the workers’ compensation statute liberally. A liberal consideration does not
mean that a trial court must accept all workers’ compensation claims as having merit or
being in need of factual resolutions. Rolsen limited his argument to a claim that the
“lower court’s improperly slanted and unreasonably rigid application of these rules does
not meet any requirements found in our common law or in the Revised Code.” Thus,
Rolsen believes that the liberal application of the law was avoided because the trial court
based its decision on a standard not provided by law. Because, as will be made clear, the
trial court’s application of the undisputed facts to the black letter law in Ohio was correct,
we cannot find that the trial court failed to liberally construe R.C. Chapter 4123 in favor
of awarding benefits.
{¶7} Walgreens argued that summary judgment was appropriate because Rolsen’s
injury was not sustained in the course of his employment with Walgreens. Workers’
compensation benefits eligibility is dependent on the employee sustaining an injury in the
course and arising out of his employment. Rosado v. Cuyahoga Metro. Hous. Auth., Inc.,
8th Dist. Cuyahoga No. 87922, 2007-Ohio-1164, ¶ 8, citing Fisher v. Mayfield, 49 Ohio
St.3d 275, 277, 551 N.E.2d 1271 (1990). The burden to establish that the injury so
occurred rests solely with the claimant. Id., citing French v. AT&T Technologies, Inc.,
69 Ohio App.3d 342, 347, 590 N.E.2d 821 (10th Dist.1990).
{¶8} As is pertinent to the issues advanced in this appeal, an employee is in the
scope of his employment when performing a required duty done directly or indirectly in
the service of the employer. Id. at ¶ 10, citing Indus. Comm. v. Ahern, 119 Ohio St. 41,
162 N.E. 272 (1928), paragraphs two and three of the syllabus. It is generally recognized
that “an injured employee need not be in the actual performance of his duties in order for
his injury to be in the ‘course of employment,’ and thus compensable.” Kohlmayer v.
Keller, 24 Ohio St.2d 10, 11, 263 N.E.2d 231 (1970), citing Marlow v. Goodyear Tire &
Rubber Co., 10 Ohio St.2d 18, 23, 225 N.E.2d 241 (1967), and Sebek v. Cleveland
Graphite Bronze Co., 148 Ohio St. 693, 698, 76 N.E.2d 892 (1947). However, injuries
that occurred during a period when the employee is engaged in a purely personal pursuit
or errand are not compensable. Id., citing Indus. Comm. v. Lewis, 125 Ohio St. 296, 181
N.E. 136 (1932); Ashbrook v. Indus. Comm., 136 Ohio St. 115, 24 N.E.2d 33 (1939); and
Ahern.
{¶9} Rolsen largely ignores the elephant in the room. The crux of Rolsen’s
appellate argument is based on the presumption that Ohio workers’ compensation law
defines “in the course of employment” without reference to whether the employer
required the activity directly or incidentally to the employee’s service. In so arguing,
Rolsen has not addressed Ahern, the holding of which contravenes his presumption. In
Ahern, the claimant was employed at a department store. A store policy permitted
employees to go to other departments before 10:00 a.m. to purchase items for their
personal use, while the employees were on duty. The claimant, while on duty and being
paid, left her department to shop in another department. As she was shopping, she
slipped on a rug, causing her to fall backwards. The Ohio Supreme Court rejected the
claim for workers’ compensation, stating that “in the course of employment” means “an
injury sustained in the performance of some required act done directly or indirectly in the
service of the employer.” Id. at 45. An employee who is injured when engaged in
pursuance of the employee’s private and personal business is not entitled to
compensation, even if the employee is being paid while engaging in that personal
business and the employer receives the benefit from the employee’s use of the employer’s
services. Id. at paragraph three of syllabus.
{¶10} In the appellate briefing and again during oral argument, Rolsen placed
much emphasis on the Fourth District’s decision in Williams v. Martin Marietta Energy
Sys., 99 Ohio App.3d 520, 528, 651 N.E.2d 55 (4th Dist.1994), claiming that all workers’
compensation claims are subject to the “totality of the circumstances,” three-part test for
determining whether a given injury “arose out of” the claimant’s employment announced
in Lord v. Daugherty, 66 Ohio St.2d 441, 423 N.E.2d 96 (1981). Rolsen’s reliance is
misplaced. As the Ohio Supreme Court has repeatedly noted, workers’ compensation
claims are fact specific, and no one test or analysis applies to every claim. State ex rel.
Oakwood v. Indus. Comm. of Ohio, 132 Ohio St.3d 406, 2012-Ohio-3209, 972 N.E.2d
590, ¶ 9; Fisher v. Mayfield, 49 Ohio St.3d 275, 280, 551 N.E.2d 1271 (1990).
Application of the Lord/Fisher factors is not mandatory, and courts were cautioned to
avoid the application of bright-line rules that will lead to “unsound and unfair” results.
Id. Ahern remains valid and binding precedent, and we must give consideration to the
analysis contained therein.
{¶11} Although given the opportunity, the Ohio Supreme Court has not overruled
Ahern. Kuehr v. Bobbie Brooks, Inc., 57 Ohio App.2d 72, 76, 385 N.E.2d 320 (8th
Dist.1978); Brady v. Safety-Kleen Corp., 61 Ohio St.3d 624, 652, 576 N.E.2d 722 (1991).
As a result, the sole issue before us is whether Rolsen’s voluntary decision to receive a
vaccination, although encouraged by Walgreens to whom a monetary benefit may have
flowed, is within the “course of employment” for the purposes of awarding workers’
compensation benefits based on the injury sustained from the injection. Even
considering all the undisputed evidence in the light most favorable to Rolsen, his injury
was not sustained in the course of his employment.
{¶12} In this case, the factual similarities between Ahern and Rolsen are too great
to be ignored: (1) neither employee was acting in the service of the employer at the
specific time of the accident; (2) both employees were involved in personal pursuits; (3)
the privilege granted by each employer existed for all employees of the respective
company; and (4) both employers received some monetary benefit from offering
employees an incentive to partake in the employer’s publicly offered services. See also
Kuehr (employer’s policy of giving preference to employees to purchase sale items did
not transform a personal business or errand into an activity within the course of
employment). Rolsen chose to use his employer to obtain the voluntary inoculation
during work hours. The analysis does not change because Walgreens allowed employees
the option to embark on the personal diversion while on duty and received some benefit
from the employees’ use of Walgreens’ retail services.
{¶13} Further, employees of health services providers, in the general sense, are not
given greater protection under workers’ compensation laws than other employees in
nonmedical fields for injuries directly sustained from personal medical treatment. See,
e.g., Beharry v. Cleveland Clinic Found., 8th Dist. Cuyahoga No. 68050, 1995 Ohio App.
LEXIS 5178, 3 (Nov. 22, 1995). In Beharry, for example, a Cleveland Clinic employee,
while on break, went to a personal dermatological appointment within the Clinic’s
facilities where she worked. The employee was injured crossing the street, which was
patrolled by the Clinic’s security forces. It was concluded that the medical care sought
was not for any work-related injury and her medical appointment was therefore personal
in nature. Id. at 5. Importantly, it was noted that the claimant could have sought her
medical treatment elsewhere, but chose her employer’s department of her own volition.
Id. at 11-12. That an employee has another option is crucial and requires that appellate
courts view the choice to use an employer’s medical services the same as the employee’s
decision to use any other medical services provider for personal medical care that would
inherently be outside the course of employment. Id. A notable exception is if the
employer requires those medical services or requires particular providers as a term of
employment. Id.; Spicer Mfg. Co. v. Tucker, 127 Ohio St. 421, 188 N.E. 870 (1934) (an
employee suffers an injury arising out of and in the course of his employment when the
employer requires the employee to be vaccinated by the employer’s physician both during
working hours and upon the employer’s authority, and the wound becomes infected
causing death or disability).
{¶14} In an effort to circumvent the personal business or errand doctrine, Rolsen
argues that not all personal activities preclude the awarding of benefits. It is true that
under Ohio law, an employee who sustains injuries while engaged in otherwise personal
activities that are instigated by or subsidized by his employer may be deemed to be within
the course of his employment in limited circumstances. Weaver v. Eaton Corp., 8th Dist.
Cuyahoga No. 56897, 1990 Ohio App. LEXIS 1732, 11-12 (May 3, 1990), citing Bower
v. Indus. Comm., 61 Ohio App. 469, 472-473, 22 N.E.2d 840 (6th Dist.1939); Sebek, 148
Ohio St. 693, 76 N.E.2d 892 (Sebek was limited in Johnson v. Indus. Comm., 164 Ohio
St. 297, 130 N.E.2d 807 (1955), paragraph four of the syllabus); Pearson v. Taylor Fruit
Farm, 18 Ohio App.2d 193, 248 N.E.2d 231 (6th Dist.1969); Burkett v. Mayfield, 7th
Dist. Mahoning No. 87 C.A.152, 1988 Ohio App. LEXIS 5230. The common theme in
each of the cases, however, was that the employee was required by his employer to be in
the situation giving rise to the injury. Id. at 12. For instance, Bower involved a teacher
attending a mandatory, out-of-town conference who was injured while en route; Pearson
involved an employee killed in a bunkhouse fire while he was living at his place of
employment to perform his job duties; and Burkett involved an employee house hunting
because of an employer-mandated move. Rolsen was not required to get the inoculation
or have the injection performed by his employer.
{¶15} In addition, Rolsen has not demonstrated that his injury would have
occurred in the course of his employment regardless of the detour to complete the
personal business or errand. Taylor v. Meijer, Inc., 182 Ohio App.3d 23,
2009-Ohio-1966, 911 N.E.2d 344 (2d Dist.), is illustrative. In that case, the Second
District held that although the employee of a grocery store engaged in a personal errand,
shopping for grocery items immediately after completing a shift, the minor diversion was
not sufficient to deem her fall, which occurred on the way to her parked car, to be outside
the course of her employment. Id. at ¶ 24. As the Second District recognized, the
employee had to exit the store and return to her vehicle as a function of her employment,
so the fact that she had previously and briefly deviated from her departure did not alter
the analysis. Id. Rolsen has not demonstrated any factual basis to conclude that his
deviation from his work-related obligations was in the course of employment.
{¶16} Rolsen availed himself of an opportunity to complete a personal errand
while on company time, the same as the employee in Ahern, 119 Ohio St. 41, 162 N.E.
272, which remains controlling precedent in Ohio. In addition, the unexpected reaction
to the inoculation, the injury at issue, would not have occurred but for Rolsen’s personal
decision to get vaccinated through his employer who provided the service to the public.
In other words, the injury was only sustained as a result of the personal errand, unlike in
Taylor where the errand was only a slight deviation and the injury occurred in an activity
logically related to work.
{¶17} We acknowledge that other states have taken a different approach to the
question of whether adverse reactions to vaccinations received during working hours are
compensable under workers’ compensation laws. See, e.g., E.I. DuPont de Nemours &
Co. v. Faupel, 859 A.2d 1042, 1044 (Del.Super.Ct.2004) (a flu vaccination, resulting in
injury may be covered by state law if there is a combination of strong urging by the
employer and some element of mutual benefit in the form of lessened absenteeism and
improved employee relations). On the other hand, other states take an approach similar
to the one adopted in Ohio. See, e.g., Blakeslee v. Platt Bros. & Co., 279 Conn. 239,
249, 902 A.2d 620 (2006), citing Smith v. Seamless Rubber Co., 111 Conn. 365, 368-69,
150 A. 110 (1930) (if the employee’s activity is for the exclusive benefit of the employee
so that it is a personal privilege or is one which the employer permits the employee to
undertake for the benefit of some other person or for some cause apart from the
employer’s own interests, the injury is not compensable under workers’ compensation
law). Rolsen contends that an employer receives an incidental benefit from the
employee’s personal decision to be inoculated against common ailments through
increased productively. Even if we were inclined to agree with Rolsen, we cannot
review the public policy rationale in amending Ohio’s approach to awarding workers’
compensation benefits based on injuries sustained from voluntarily obtained vaccinations
received during working hours unless Ahern is overruled.
{¶18} The trial court did not err in finding, as a matter of law, that Rolsen’s injury
was not sustained in the course of his employment. The facts were undisputed. Rolsen
was engaged in a personal errand at the time of injury, and the fact that the employer
encouraged and obtained some benefit from the employee’s decision to use the
employer’s services does not alter the outcome. We affirm.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into
execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR