Kerr v. OhioHealth Corp.

[Cite as Kerr v. OhioHealth Corp., 2022-Ohio-2697.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
Durbin W. Kerr, :
Plaintiff-Appellant, :
No. 21AP-403
v. : (C.P.C. No. 19CV-9117)
OhioHealth Corporation et al., : (REGULAR CALENDAR)
Defendants-Appellees. :
D E C I S I O N
Rendered on August 4, 2022
On brief: Jon Goodman Law, LLC, and Jon H. Goodman;
Janet L. Phillips, for appellant. Argued: Jon H. Goodman.
On brief: Perez & Morris LLC, Richard A. Hernandez, and
Rebecca J. Johnson, for appellee OhioHealth Corporation.
Argued: Richard A. Hernandez.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{¶ 1} Plaintiff-appellant, Durbin W. Kerr, appeals from a judgment of the Franklin
County Court of Common Pleas granting the motion for summary judgment filed by
defendant-appellee, OhioHealth Corporation ("OhioHealth"), and finding that Kerr was
not entitled to participate in the workers' compensation fund for injuries he sustained on
January 25, 2019. For the reasons which follow, we affirm.
I. Facts and Procedural History
{¶ 2} OhioHealth employed Kerr as a social worker in their hospice department.
OhioHealth assigned patients to Kerr, and Kerr's job generally involved "link[ing] patients
up with resources, provid[ing] support for the patient and families." (Kerr Depo. at 30.)
Kerr would conduct a psychosocial assessment of his patients, which involved assessing the
No. 21AP-403 2
patient's medical history, limitations, and abilities, reviewing the patient's current services,
and anticipating future services the patient may need. Kerr worked from 8:00 a.m. to 4:30
p.m. and was a salaried employee.
{¶ 3} OhioHealth required that Kerr travel to see his patients in the personal
residence or nursing facility where the patient was located. Kerr's assigned geographic area
was Franklin County, Ohio, and OhioHealth generally assigned Kerr to patients located in
the Clintonville and Linden neighborhoods. Kerr drove his personal vehicle to patient visits
and typically visited four or five patients a day. OhioHealth reimbursed Kerr's mileage and
provided him with a cell phone and laptop computer. Although OhioHealth maintained a
work space for social workers at OhioHealth's Kobacker House, a hospice care center, Kerr
was not required to report to Kobacker House on a daily basis. Kerr did report to Kobacker
House once a week for a team meeting and stated that he would occasionally work at
Kobacker House depending on his schedule. However, if there was "no reason for [him] to
go to Kobacker House," Kerr would typically "work from home" and go "straight to [patient]
visits from home." (Kerr Depo. at 55-56.) Kerr generally did his "[c]harting [and] phone
work" from home. (Kerr Depo. at 56.)
{¶ 4} Kerr worked on a hospice team which consisted of himself, a nurse, a case
manager, and a chaplain. In January 2019, Reverend Nooks was the chaplain on Kerr's
hospice team. Kerr explained that "through either text or phone or in e-mail," he and the
other members of his team would create their daily schedule of patient visits. (Kerr Depo.
at 52.) Kerr had a "call-in interdisciplinary team meeting every morning" with his
supervisor, but Kerr affirmed that he "construct[ed] [his own daily] schedule" without input
from his supervisor. (Kerr Depo. at 51, 59.)
{¶ 5} On January 25, 2019, Kerr and Reverend Nooks drove together in Kerr's car
to patient visits which began at 10:30 a.m. at a nursing home. Kerr and Reverend Nooks
would often conduct patient visits together and were personal friends. As Kerr and
Reverend Nooks' morning appointments concluded by 11:45 a.m., and they did not have
another scheduled visit until 1:30 p.m., they decided to go to lunch. They went to the Rusty
Bucket restaurant in Clintonville because it was "en route" to their 1:30 p.m. patient visit at
a residence in the same neighborhood. (Kerr Depo. at 66.)
No. 21AP-403 3
{¶ 6} Kerr parked his car in the restaurant's parking lot and exited the vehicle. As
Kerr began walking toward the restaurant, he slipped and fell on ice in the parking lot.
Reverend Nooks helped Kerr into the restaurant where they proceeded to have lunch.
Following lunch, Kerr drove to Kobacker House and then went to the emergency room.
Kerr sustained a concussion and a right wrist fracture from his fall in the parking lot.
{¶ 7} Kerr filed an application for workers' compensation benefits regarding the
injuries he sustained on January 25, 2019. Following a June 14, 2019 hearing, an Industrial
Commission of Ohio ("commission") district hearing officer ("DHO") denied Kerr's
application, concluding Kerr did not receive his injuries in the course of or arising out of his
employment with OhioHealth. A commission staff hearing officer affirmed the DHO's
order, and the commission refused further appeal. On November 12, 2019, Kerr filed an
action in the trial court, pursuant to R.C. 4123.512, asserting he had a right to participate in
the workers' compensation fund for the injuries he sustained on January 25, 2019.
{¶ 8} OhioHealth filed a Civ.R. 56 motion for summary judgment on September 17,
2020, asserting that the coming-and-going rule precluded Kerr from participating in the
workers' compensation fund and that Kerr's injuries did not occur in the course of or arising
out of his employment. Kerr filed a motion for summary judgment on September 21, 2020,
asserting the coming-and-going rule did not apply to him and that his injuries had occurred
in the course of and arising out of his employment. OhioHealth filed a memorandum in
opposition to Kerr's motion for summary judgment on October 14, 2020. Kerr filed a
memorandum in opposition to OhioHealth's motion for summary judgment on October 19,
2020, asking the court to deny both parties' motions for summary judgment.
{¶ 9} On July 19, 2021, the trial court issued a decision granting OhioHealth's
motion for summary judgment and denying Kerr's motion for summary judgment. The
court held that the location of each of Kerr's patient visits was a fixed worksite, as Kerr's
"substantial employment duties commenced when he would arrive at a patient's home."
(Decision at 7.) As such, the court held the coming-and-going rule prevented Kerr from
participating in the workers' compensation fund. The court further held that, even if Kerr
was not subject to the coming-and-going rule, Kerr's injuries did not occur in the course of
or arising out of his employment.
No. 21AP-403 4
II. Assignments of Error
{¶ 10} Kerr appeals and assigns the following two assignments of error for our
review:
I. The trial court erred as a matter of law by granting
defendant-appellee's motion for summary judgment based on
the finding that Mr. Kerr is a fixed situs employee and
therefore subject to the coming and going rule.
II. The trial court erred as a matter of law by granting
defendant-appellee's motion for summary judgment based on
the finding that Mr. Kerr was not injured in the course of and
arising out of his employment based on the totality of the
circumstances attending his injury.
III. Analysis
{¶ 11} Kerr's assignments of error both contend the trial court erred by granting
OhioHealth's motion for summary judgment. An appellate court reviews a grant of
summary judgment under a de novo standard. Capella III, L.L.C. v. Wilcox, 190 Ohio
App.3d 133, 2010-Ohio-4746, ¶ 16 (10th Dist.), citing Andersen v. Highland House Co., 93
Ohio St.3d 547, 548 (2001). "[D]e novo appellate review means that the court of appeals
independently reviews the record and affords no deference to the trial court's decision."
(Internal quotations and citations omitted.) Holt v. State, 10th Dist. No. 10AP-214, 2010-
Ohio-6529, ¶ 9. Summary judgment is appropriate only when the moving party
demonstrates: (1) no genuine issue of material fact exists, (2) the moving party is entitled
to judgment as a matter of law, and (3) reasonable minds could come to but one conclusion
and that conclusion is adverse to the party against whom the motion for summary judgment
is made. Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181,
183 (1997). In ruling on a motion for summary judgment, the court must resolve all doubts
and construe the evidence in favor of the non-moving party. Premiere Radio Networks,
Inc. v. Sandblast, L.P., 10th Dist. No. 18AP-736, 2019-Ohio-4015, ¶ 6, citing Pilz v. Ohio
Dept. of Rehab. & Corr., 10th Dist. No. 04AP-240, 2004-Ohio-4040, ¶ 8.
{¶ 12} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of
informing the trial court of the basis for the motion and of identifying those portions of the
record demonstrating the absence of a genuine issue of material fact. Dresher v. Burt, 75
Ohio St.3d 280, 293 (1996). If the moving party fails to satisfy its initial burden, the court
No. 21AP-403 5
must deny the motion for summary judgment; however, if the moving party satisfies its
initial burden, summary judgment is appropriate unless the non-moving party responds,
by affidavit or otherwise as provided under Civ.R. 56, with specific facts demonstrating a
genuine issue exists for trial. Id.; Hall v. Ohio State Univ. College of Humanities, 10th Dist.
No. 11AP-1068, 2012-Ohio-5036, ¶ 12, citing Henkle v. Henkle, 75 Ohio App.3d 732, 735
(12th Dist.1991).
{¶ 13} When an Ohio employee is injured or contracts an occupational disease in
the course of their employment, they are entitled to receive compensation for the loss
sustained on account of the injury or occupational disease. R.C. 4123.54(A). Ohio workers'
compensation statutes define an "[i]njury" as including "any injury, whether caused by
external accidental means or accidental in character and result, received in the course of,
and arising out of, the injured employee's employment." R.C. 4123.01(C).
{¶ 14} The "test of the right to participate in the Workers' Compensation Fund is not
whether there was any fault or neglect on the part of the employer or his employees, but
whether a 'causal connection' existed between an employee's injury and his employment
either through the activities, the conditions or the environment of the employment."
Bralley v. Daugherty, 61 Ohio St.2d 302, 303 (1980). While workers' compensation
statutes must be liberally construed in favor of employees, the statutes may not be
construed so broadly as to eliminate the required causal connection to the injured worker's
employment. Hicks v. Safelite Group, Inc., 10th Dist. No. 20AP-136, 2021-Ohio-3044, ¶ 11;
R.C. 4123.95; Collins v. W. S. Life Ins. Co., 1st Dist. No. C-070189, 2008-Ohio-2054, ¶ 6.
{¶ 15} Historically, when analyzing whether an employee received an injury in the
course of and arising out of their employment, similar fact patterns have caused courts to
promulgate certain rules. Fisher v. Mayfield, 49 Ohio St.3d 275, 280 (1990). The "coming-
and-going" rule is one such example. Id. Accord Cossin v. Ohio State Home Servs., Inc.,
10th Dist. No. 12AP-132, 2012-Ohio-5664, ¶ 22. The Supreme Court of Ohio has cautioned,
however, that "no one test or analysis can be said to apply to each and every factual
possibility" and no "one factor" can be considered controlling. Fisher at 280. Rather, a
court must examine the separate and distinct facts of each case utilizing a flexible and
analytically sound approach. Id.No. 21AP-403 6
A. First Assignment of Error – Fixed Situs
{¶ 16} Kerr's first assignment of error asserts the trial court erred by finding he was
a fixed situs employee subject to the coming-and-going rule. 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 'arises out of' the employment relationship so as to constitute
a compensable injury." Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 119 (1998).
The rule provides that "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 the injury and the
employment does not exist." MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66 (1991), syllabus.
See Lippolt v. William R. Hague, Inc., 10th Dist. No. 08AP-140, 2008-Ohio-5070, ¶ 11,
citing Ruckman at 119 (explaining the rationale for the coming-and-going rule "is that the
workers' compensation statutes contemplate only hazards encountered in the discharge of
employment duties and not hazards or risks, such as travel to and from the place of
employment, that the general public similarly encounters").
{¶ 17} Thus, the coming-and-going rule applies only to employees who work at a
fixed location, known as a fixed situs. Cunningham v. Bone Dry Waterproofing, Inc., 10th
Dist. No. 15AP-587, 2016-Ohio-3341, ¶ 11. A fixed situs employee is one who commences
their "substantial employment duties only after arriving at a specific and identifiable work
place designated by his employer." Ruckman at 119, citing Indus. Comm. v. Heil, 123 Ohio
St. 604, 606-07 (1931). Whether an employment situs "is fixed or non-fixed * * * 'depends
upon whether the traveling itself was part of the employment, either by virtue of the nature
of the occupation or by virtue of the contract of employment.' " Lippolt at ¶ 12, quoting
Fletcher v. Northwest Mechanical Contrs., Inc., 75 Ohio App.3d 466, 473 (6th Dist.1991).
Accord Bennett v. Goodremont's, Inc., 6th Dist. No. L-08-1193, 2009-Ohio-2920, ¶ 19
(stating that "[c]onsideration of an employee's 'substantial employment duties' requires
* * * [an] examination of the employee's duties as a whole and consideration of whether
such duties were such as to make travel * * * an integral part of the employee's
employment"); Cossin at ¶ 31 (finding a traveling sales consultant to be a non-fixed situs
employee, as the employee's "travel over central Ohio roads to the homes of potential
customers" was an "integral part of [the employee's] employment duties").
No. 21AP-403 7
{¶ 18} In Ruckman, the Supreme Court held that well-drilling riggers who were
injured in automobile accidents on their way to work were fixed situs employees. The
riggers' job required they travel to remote locations over a three-state area to drill wells,
and the riggers' work assignments typically lasted "between three and ten days" at a time.
Id. at 124. The court found each drilling site to be a fixed place of employment, as the riggers
had "no duties to perform away from the drilling sites to which they were assigned" and the
"riggers' workday began and ended at the drilling sites." Id. at 120. The court observed that
the focus of the fixed situs inquiry remained the same "even though the employee may be
reassigned to a different work place monthly, weekly, or even daily," as "each particular job
site may constitute a fixed place of employment." Id. The court found the coming-and-
going rule applicable to the riggers' injuries.1
{¶ 19} In Cunningham, this court held that an injured worker, whose employment
involved applying a special waterproofing paint to the foundations of residential homes,
was a fixed situs employee. The worker in Cunningham drove his personal vehicle to each
job site and indicated that he "could work as many as five jobs in five different locations in
one day." Id. at ¶ 3. The Cunningham court held that each job site constituted a fixed place
of employment, because the injured worker "commence[d] substantial employment duties
only when he arrive[d] at the job site" and because each job site was at a "fixed location[]."
Id. at ¶ 15. As such, the court held that the injured worker in Cunningham was "a fixed-
situs employee as contemplated in Ruckman." Cunningham at ¶ 15. The court focused in
particular on the fact that the injured worker's detour to his home to pick up paint brushes
"was not required as a part of his work and [thus the injured worker] d[id] not commence
his substantial employment duties in his pursuit of the paint brushes at his home." Id. at
¶ 14-15. The court made its holding "[u]nder these facts." Id. at ¶ 15.
{¶ 20} Several appellate districts have issued cases, like Cunningham, finding an
employee with multiple job locations in a single day to be a fixed situs employee as to each
location. The determinative characteristic of the fixed situs analysis in such cases is that
the employee did not have any job duties to perform away from their designated worksites.
Gilham v. Cambridge Home Health Care, Inc., 5th Dist. No. 2008 CA 00211, 2009-Ohio-
1 The court ultimately found, however, that the special hazard exception to the coming-and-going rule
rendered the riggers' injuries compensable. Ruckman at 124-26. See Cunningham at ¶ 16 (identifying the four
exceptions to the coming-and-going rule).
No. 21AP-403 8
2842, ¶ 18 (holding that a home healthcare aide who saw two patients a day was a fixed
situs employee as to each patient visit, because she had "no duties to perform outside the
homes of her patients"); Green v. Marc Glassman, Inc., 11th Dist. No. 2017-P-0041, 2017-
Ohio-9343, ¶ 16 (finding the injured worker's employment "demonstrated the
determinative characteristics of a fixed-situs employee: he did not commence his
employment duties (installing cash registers) until he arrived at a specific and identifiable
work place (a store) designated by [his employer], albeit one that varied periodically");
Palette v. Fowler Elec. Co., 11th Dist. No. 2014-G-3196, 2014-Ohio-5376, ¶ 26, 28 (holding
that a HVAC service technician who often "reported to two job sites in one day" was a fixed
situs employee as he "generally commenced his duties servicing heating and cooling units
when arriving on the site of his job on that day"); Smith v. Akron, 9th Dist. No. 22101, 2004-
Ohio-4974, ¶ 12 (holding that a landscaper who traveled to "two job sites" on the day of his
injury was a fixed situs employee, as "each landscaping project was at a specific and fixed
location" and the landscaper did not have "any duties to carry out away from each work site
to which they were assigned").
{¶ 21} Nevertheless, Ruckman relied on the fact that the riggers' "workday began
and ended at the drilling sites" to find each drilling site a fixed situs of employment.
Ruckman at 120. While the riggers in Ruckman changed their work site every three to ten
days, they did not change their worksite in the course of the same day. Accordingly,
Ruckman did not hold that an employee who changed their job location multiple times in
a single day could be a fixed situs employee as to each location. Accord Cossin at ¶ 25
(observing that Ruckman "did not hold that an employee such as claimant, who was
assigned to multiple locations during the course of a single day, was a fixed-situs employee
as to each of those locations"); Miller v. Admr., Bur. of Workers' Comp., 9th Dist. No.
24805, 2010-Ohio-1347, ¶ 23 (noting that "while Ruckman held that an employee's work
situs may change daily, it did not hold that an employee's fixed work situs may change on
the hour within the same work day").
{¶ 22} Furthermore, as noted above, the Supreme Court has cautioned that a court
must examine the separate and distinct facts of each case. The separate and distinct facts
here, demonstrated by Kerr's testimony, are that while conducting patient visits was an
integral part of his employment, it was not the only obligation of his employment. Kerr
No. 21AP-403 9
affirmed that the "majority" of his employment activities included "charting in [his] home,
making phone calls, [or being] in a person's home or in the nursing home" performing a
psychosocial assessment. (Kerr Depo. at 57.) Kerr explained he had to create "a note" for
each patient visit and that he had an interdisciplinary team meeting phone call with his
supervisor every morning. (Kerr Depo. at 51, 40.)
{¶ 23} The trial court acknowledged that Kerr had work obligations outside of his
patient visits, but characterized these obligations as non-substantial because Kerr
performed them "in support of his in-home client visits." (Decision at 7.) OhioHealth
similarly characterizes Kerr's obligations outside of his patient visits as non-substantial and
asserts that the home health aide in Gilham "would have similar charting/paperwork duties
to Mr. Kerr." (Appellee's Brief at 22.) However, in Gilham the court explained that the
aide's "billable time [began] when [she] reache[d] the residence and terminate[d] when
[she left] the residence," the aide had to have each patient "sign[] a time sheet confirming
the time spent and the services performed" at the end of her patient visits, and that the aide
was "not compensated for travel time or travel expenses between client visits." Gilham at
¶ 3, 18. Thus, in contrast to Kerr's employment, it does not appear that the aide in Gilham
had any employment duties to perform outside of her patient visits.
{¶ 24} Considering Kerr's employment obligations as a whole, we do not view Kerr's
job duties of charting patient records or participating in required phone calls as non-
substantial aspects of his job. If Kerr failed to chart his notes regarding each patient visit
or participate in the morning meeting phone call, Kerr would fail to perform significant
obligations mandated by his employer. While Kerr stated he typically did his charting and
phone calls at home, he also stated that he may have early morning appointments and need
to "make [his phone] calls from the field" or need to do his charting at Kobacker House
depending on his schedule. (Kerr Depo. at 53, 55-56.) Kerr further explained how his
planned schedule for any day could change, as a patient may suddenly become "close to
death or they've died and you have to drop whatever you're doing and go take care, go see
the family at that point." (Kerr Depo. at 53.)
{¶ 25} Viewing the evidence in a light most favorable to Kerr, Kerr was not a fixed
situs employee. Traveling to patient visits was an integral part of Kerr's job and Kerr did
not spend his entire workday at a singular worksite. See Ruckman at 120; Lippolt at ¶ 12;
No. 21AP-403 10
Cossin at ¶ 31. Moreover, as Kerr had substantial employment duties which he performed
outside of his patient visits and at non-fixed locations, even pursuant to the analysis in
Cunningham and similar cases, Kerr could not be considered a fixed situs employee.
{¶ 26} Accordingly, as a non-fixed situs employee, Kerr was not subject to the
coming-and-going rule. Kerr's first assignment of error is sustained.
B. Second Assignment of Error - In the Course of and Arising Out of
Employment
{¶ 27} Kerr's second assignment of error asserts the trial court erred by finding his
injury did not occur in the course of and arising out of his employment. An injured worker
bears the burden to prove both that their injury occurred in the course of and arising out of
their employment. Fisher at 277-78 (recognizing the "conjunctive nature of the coverage
formula").
{¶ 28} "The phrase 'in the course of employment' limits compensable injuries to
those sustained by an employee while performing a required duty in their employer's
service." Ruckman at 120, quoting Indus. Comm. v. Gintert, 128 Ohio St. 129, 133-34
(1934). The "in the course of" prong concerns the time, place, and circumstances of the
injury, which are "factors used to determine whether the required nexus exists between the
employment relationship and the injurious activity." Ruckman at 120, citing Fisher at 277.
While a worker need not be " 'injured in the actual performance of work for his employer,' "
an injury is compensable only "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." Ruckman at 120, quoting Sebek v. Cleveland Graphite Bronze Co.,
148 Ohio St. 693 (1947), paragraph three of the syllabus.
{¶ 29} The "arising out of" prong contemplates "a causal connection between the
employment and the injury." Fisher at 277. In Lord v. Daugherty, 66 Ohio St.2d 441(1981), the Supreme Court held that whether a sufficient causal connection exists between
the employment and the injury depends on the totality of the facts and circumstances
surrounding the accident, including: (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. Lord at syllabus. See Fisher at 277. The Lord factors are not
No. 21AP-403 11
exhaustive, however, and an employee may still establish the requisite causal connection
although they fail to establish one or more of these factors. Friebel v. Visiting Nurse Assn.
of Mid-Ohio, 142 Ohio St.3d 425, 2014-Ohio-4531, ¶ 14, citing Fisher at 279, fn. 2. Accord
Ruckman at 122.
{¶ 30} For non-fixed2 situs employees "who travel regularly for work" and who
sustain injury "during an employment-related trip, courts have generally held that the
employee is entitled to benefits unless the injury occurred while the employee was on a
personal errand." Friebel at ¶ 15, citing Woodard v. Cassens Transport Co., 3d Dist. No.
14-11-22, 2012-Ohio-4015. This principal is referred to as the "traveling employee"
doctrine. Lippolt at ¶ 17. Accord Cossin at ¶ 29, quoting Griffith v. Miamisburg, 10th Dist.
No. 08AP-557, 2008-Ohio-6611, ¶ 13 (holding that a traveling employee's injuries are not
compensable " 'where the injuries occurred during an employment-related trip, but while
the employee was engaged in a purely personal mission or errand' "); Cline v. Yellow
Transp., Inc., 10th Dist. No. 07AP-498, 2007-Ohio-6782, ¶ 21 (stating that a traveling
employee's injury is compensable when "it is the work-mandated traveling itself that not
only occasions the injury but is the very object of the employment and the primary duty for
which the employee is paid"); Rankin v. Thomas Sysco Food Servs., 1st Dist. No. C-950904
(Nov. 27, 1996); Heil, 123 Ohio St. at 606-07; Lohnes v. Young, 175 Ohio St. 291 (1963).
The Supreme Court has instructed courts to apply "the 'in the course of' and 'arising out of'
tests described in Fisher and its progeny, including the totality-of-the-circumstances tests
for causation described in Lord and Ruckman" even when an employee's "work creates the
necessity for travel and the travel includes a personal purpose." Friebel at ¶ 28.
2 For fixed situs employees injured on their employer's premises during a lunch or rest break, the injury will
generally be found to have occurred in the course of and arising out of their employment. See Bauder v.
Mayfield, 44 Ohio App.3d 91, 93 (3d Dist.1988); Dolby v. Gen. Motors Corp., 62 Ohio App.3d 68, 69-70 (8th
Dist.1989); Lemming v. Univ. of Cincinnati, 41 Ohio App.3d 194 (1st Dist.1987), syllabus; Trotter v. Admr.,
Ohio Bur. of Workers' Comp., 8th Dist. No. 60325 (Apr. 2, 1992). See also Kohlmayer v. Keller, 24 Ohio St.2d
10 (1970), syllabus (holding that an employee's injury during a company "picnic which is sponsored, paid for
and supervised by the employer" occurs "in the course of his employment"). For fixed situs employees who
sustain injury when they travel off their employer's premises for lunch, the coming-and-going rule provides
that the injury is generally not compensable. Hill v. Gen. Metal Heat Treating, Inc., 47 Ohio App.3d 72, 73
(8th Dist.1988); Hawkins v. Connor, 3d Dist. No. 10-82-11 (Aug. 12, 1983); Eagle v. Indus. Comm., 146 Ohio
St. 1, 2-3 (1945). See Fulton, Ohio Workers' Compensation Law (2 Ed.1998) 190-91, Section 7.10 (explaining
that injuries occurring on the "employer's premises during a regular lunch hour therefore occur in the course
of employment," while in contrast an "injury suffered by an employee during an off-premises excursion even
for a paid lunch break does not occur in the course of employment"). Compare Miller, 2010-Ohio-1347, at
¶ 30.
No. 21AP-403 12
{¶ 31} In Cline we held that an over-the-road truck driver's injury, which occurred
when the driver was hit by a car while walking from his employer-provided hotel to a
restaurant during a federally mandated rest period, did not occur in the course of or arising
out of his employment. The truck driver was "free to choose how and where he obtained
his meals," although he was not permitted to drive his company-owned tractor to a
restaurant when there was an eating establishment within walking distance of his hotel.
Cline at ¶ 4. We found the truck driver's trip to the restaurant to be a "personal errand," as
the driver was not engaged in an "activity that benefited [the trucking company] or
furthered its business." Id. at ¶ 20. We concluded the accident did not arise out of the
driver's employment, as it did not occur in proximity to the trucking company's location,
the company had no control over the public street where the accident occurred, and because
the company "received no cognizable benefit from [the driver's] presence at the scene of the
accident." Id. at ¶ 22-24. See also Elsass v. Commercial Carriers, Inc., 73 Ohio App.3d
112, 115 (3d Dist.1992) (holding that a truck driver's injury, which occurred after the truck
driver left his employer-provided motel, was not compensable as the truck driver's trip to
find "food, 'action,' or both" was taken "at his own peril" and the employer "received no
benefit from [the driver's] presence in Washington D.C. at 12:30 a.m."); Richardson v.
Admr., Ohio Bur. of Workers' Comp., 10th Dist. No. 03AP-913, 2004-Ohio-1340, ¶ 16
(finding a traveling employee's injury which occurred after the employee left his employer-
provided hotel and went to a restaurant to watch a basketball game and eat dinner was not
compensable, as the employer "did not pay for [the employee's] meals and had no control
over what arrangements [the employee] made to procure dinner each night"); Marbury v.
Indus. Comm., 62 Ohio App.3d 786, 790 (2d Dist.1989) (holding that, even if the
employee's trip on a tour bus during a business trip was within the course of her
employment, when the employee left the tour bus and "entered a souvenir shop in
Washington for the purpose of purchasing a T-shirt for her daughter, she was on a purely
personal mission * * * and was therefore outside the course of her employment"); Roop v.
Centre Supermarkets, Inc., 6th Dist. No. L-86-206 (Apr. 24, 1987).
{¶ 32} In Jones v. USF Holland, Inc., 10th Dist. No. 10AP-537, 2011-Ohio-2368, we
held that an over-the-road truck driver was not entitled to participate in the workers'
compensation fund for an injury sustained when the driver slipped and fell in his hotel
No. 21AP-403 13
bathroom. We found the truck driver's injury occurred in the course of his employment, as
the driver was staying at a hotel approved and paid for by his employer during a federally
mandated rest period. Id. at ¶ 20. However, we held that the injury did not arise out of the
truck driver's employment, as the hotel was not in close proximity to the trucking
company's terminal, the company did not have control over the scene of the accident, and
because there was "simply an insufficient causal nexus between the highly personal act of
taking a shower and [the trucking company's] business of transporting cargo by truck." Id.
at ¶ 23. Accord Woodard at ¶ 22.
{¶ 33} In Lippolt, we held that a traveling employee's injury, which occurred when
the employee slipped and fell while walking from his rental car to his employer-provided
hotel, was compensable. The employee's injury in Lippolt occurred during a week-long
business trip where the employee had to visit certain stores located throughout an eight-
state territory. As the employee's job responsibilities "encompassed not only his store visits
and his travel to, from, and between stores," but also his "stay in hotels" during the trip, we
found the employee's walk from his rental car to his hotel following his last store visit of the
day to be in the course of his employment and not a personal errand. Id. at ¶ 22. We
concluded the injury arose out of the injured worker's employment, as the hotel was in close
proximity to the employee's next store visit, the employer paid for the employee's lodging,
and, "[m]ost importantly," because the employee's presence at the hotel benefitted his
employer by enabling the employee "to visit more stores throughout his multi-state area"
and "eliminat[ing] the need for [the employer] to have employees in closer proximity to the
stores in [the employee's] territory." Id. at ¶ 26. See also Griffith at ¶ 19-35; Masden v. CCI
Supply, Inc., 2d Dist. No. 22304, 2008-Ohio-4396, ¶ 12.
{¶ 34} In Cossin, we found that a traveling sales consultant's injury in an automobile
accident occurred in the course of and arising out of the sales consultant's employment. As
the accident occurred while the employee was "traveling a direct route" from his last sales
appointment of the day to his home, we held that the injury occurred in the course of the
employee's job duties and not while the employee was on a personal errand. Id. at ¶ 32-33.
We found that the automobile accident arose out of the sales consultant's employment, as
there was "a clear causal connection between a substantial obligation of his employment,
No. 21AP-403 14
i.e., driving to and from homeowners' residences, and the injuries he suffered in a motor
vehicle accident during such a drive." Id. at ¶ 36.
{¶ 35} In Jones v. Multicare Health & Edn. Servs., Inc., 8th Dist. No. 98899, 2013-
Ohio-701, the court found genuine issues of material fact regarding whether a home
healthcare worker's injury in an automobile accident occurred in the course of and arose
out of his employment. The injured worker was a non-fixed situs employee, and the
accident occurred when the employee was driving to a pharmacy to pick up a prescription
for a patient following the employee's half-hour lunch break. Id. at ¶ 2-4. The court held
that reasonable minds could find the injury occurred in the course of and arising out of the
injured worker's employment, as the employee's "job duties required him to drive to the
pharmacy to pick up the client's prescription" and the accident occurred "closer to the
pharmacy than to downtown" where the injured worker had lunch. Id. at ¶ 19-24.
{¶ 36} Considering the foregoing authorities as applied to the specific facts of the
present case, the record evidence fails to demonstrate that Kerr's injury occurred in the
course of or arising out of his employment with OhioHealth. Kerr was not provided a
formal lunch hour by OhioHealth. OhioHealth did not reimburse Kerr for lunch, Kerr did
not deduct his lunches as a business expense, and OhioHealth did not have any policies
regarding where Kerr could eat lunch. Kerr affirmed that lunches were "on [his] own."
(Kerr Depo. at 49.) OhioHealth did not require Kerr to discuss patient care or to engage in
any other work-related obligations during his lunch. Kerr affirmed that OhioHealth did not
require him to eat lunch at the Rusty Bucket restaurant on January 25, 2019.
{¶ 37} The "in the course of" prong of the statutory test addresses the time, place,
and circumstances of the injury. Although Kerr's injury occurred in the middle of his
workday, it occurred during a 1 hour and 45-minute gap of time between his morning and
afternoon patient visits. There is nothing in the record indicating that OhioHealth required
Kerr to engage in job duties during this time between patient visits. While Kerr could have
used the time to complete employment duties, he chose to use the time to go to a restaurant
for lunch. Regarding the place of the injury, as Lippolt, Jones v. USF Holland, and Cossin
demonstrate, when a traveling employee is injured in a place their employment duties
require them to be, the employee will generally be within the course of their employment.
Thus, had Kerr been injured while traveling on the public roadways from one patient to the
No. 21AP-403 15
next, Kerr would likely have been in the course of his employment. See Cossin at ¶ 37
(holding that the traveling sales consultant was in the course of his employment while
traveling on the "roads he was obligated by his employment to traverse"). However, Kerr
was not injured while traveling on the roads from one patient visit to the next, but after he
stopped at a restaurant to have lunch. Kerr failed to present evidence demonstrating that
he was present at the restaurant because of an employment obligation.
{¶ 38} The circumstances of Kerr's injuries demonstrate that Kerr slipped and fell in
a restaurant parking lot and that OhioHealth did not require Kerr to be present at the
restaurant. The risk of slipping and falling in a restaurant parking lot, when there is no
employment-related reason for being at the restaurant, is a risk or hazard encountered by
the general public. See Phelps v. Positive Action Tool Co., 26 Ohio St.3d 142, 144 (1986)
(stating that the purpose of the Workers' Compensation Act "is not to make an employer an
absolute insurer of the employee's safety, but only to protect the employee against risks and
hazards incident to the performance of his work"); Jenkins v. Shawnee Footwear, 4th Dist.
No. 88CA1792 (Mar. 20, 1990) (observing that an employee's injury, which occurred when
the employee slipped and fell "on the premises of a carry-out store," was not compensable
as it did not result from a risk which was "distinctive in nature or quantitatively greater than
the risk common to the public"); MRD Prods. at 69. As Kerr was injured during time
between patient visits, at a place his employment duties did not obligate him to be, and
under circumstances which fail to demonstrate that he was engaged in an activity logically
related to OhioHealth's business, the time, place, and circumstances of Kerr's injuries fail
to demonstrate that Kerr was injured in the course of his employment.
{¶ 39} The "arising out of" prong of the statutory test addresses whether a causal
connection exists between the employment and the injury, considering the totality of the
facts and circumstances and the Lord factors. Kerr contends the scene of the accident was
in close proximity to his place of employment, as the restaurant was on the route to his
afternoon patient visit which were both located in Clintonville. Although there is no
evidence in the record regarding the distance from the restaurant to the residence of Kerr's
next patient, Kerr's testimony could support a finding that the scene of the accident was in
proximity to Kerr's place of employment. See Lippolt at ¶ 26 (finding that the hotel where
the employee slipped and fell "was undisputedly in close proximity to the store [the
No. 21AP-403 16
employee] intended to visit early the next morning"). Regarding the control factor, Kerr
"concedes that OhioHealth [did] not control the parking lot at Rusty Bucket," but asserts
that OhioHealth did "dictate[] which patients he [saw] each work day." (Appellant's Brief
at 28.) However, the control factor of the Lord test concerns "the amount of control the
employer had over the situs of the injury, and not the degree of control the employer had
regarding the actions of its employees." Fisher at 279. Accord Cline at ¶ 23 (observing that
the control factor "is concerned with the degree of control over the scene, not the
employee"). OhioHealth did not control the Rusty Bucket parking lot, which was the situs
of Kerr's injury. Nevertheless, "the absence of [the control] factor cannot be considered
controlling to deny coverage." Griffith at ¶ 31, citing Fisher at 280.
{¶ 40} Kerr contends OhioHealth benefitted from his presence at the restaurant,
because he and Reverend Nooks "discussed patient care at lunch, although they were not
required to do so." (Appellant's Brief at 28.) Kerr initially testified that he believed "in a
general way" he and Reverend Nooks discussed patient visits during their lunch on
January 25, 2019, but when asked if he specifically remembered discussing patient visits
during lunch, Kerr responded stating, "I'll say no. I don't remember exactly what the
conversation was." (Kerr Depo. at 72.) Moreover, as Kerr acknowledges, OhioHealth did
not require him to discuss patient visits or any other work-related topics during lunch. See
Smith at ¶ 17 (holding that an employee's act of "explaining job responsibilities to a new
employee" during their lunch break did not create a causal connection between the lunch
and the employment, as there was "no evidence in the record to suggest that the employer
had specifically required Mr. Smith to discuss employment matters during the unpaid
lunch break").
{¶ 41} Kerr further argues that OhioHealth received a benefit from having a
refreshed and rejuvenated employee who had eaten lunch. However, in Cline we found no
cognizable benefit to a trucking company when the company's truck driver was injured
while walking across the street from his hotel to eat dinner at a restaurant. Cline at ¶ 24.
In Jones v. USF Holland, we recognized that the trucking company derived "some benefit"
from have a "well-rested employee" who had slept in a hotel, but found such benefit
insufficient to establish a "causal nexus between the highly personal act of taking a shower
and USF Holland's business of transporting cargo by truck." Jones v. USF Holland at ¶ 23.
No. 21AP-403 17
In Jones v. Multicare, the court noted the employer received a benefit from a "refreshed
and rejuvenated employee from having lunch," but specifically found the employer
benefitted from the employee's location at the scene of the accident as the employee was on
his way to "pick[] up the client's prescription – a necessary part of his job." Jones v.
Multicare at ¶ 24.
{¶ 42} While every employer receives some benefit from having well-nourished
employees, such benefit is insufficient, on its own, to establish a causal nexus between
eating lunch and an injured worker's employment. In contrast to Jones v. Multicare, Kerr
was not injured while driving to his next employment obligation following lunch, but was
injured as he walked into a restaurant to have lunch. As Kerr did not perform any work-
related duties at the lunch on January 25, 2019, and OhioHealth did not require Kerr to
have lunch at the restaurant or to engage in any employment duties at lunch, the evidence
fails to demonstrate that OhioHealth received a benefit from Kerr's presence in the Rusty
Bucket parking lot. Rather, as in Cline, Kerr's trip to the restaurant for lunch constituted a
personal errand. Considering the totality of the facts and circumstances of the present case,
we are unable to find a causal connection between Kerr's act of going to the restaurant for
lunch and OhioHealth's business of providing care to hospice patients.
{¶ 43} Thus, even viewing the evidence in a light most favorable to Kerr, the
evidence demonstrates that Kerr did not receive his injuries on January 25, 2019 in the
course of or arising out of his employment with OhioHealth. As such, we overrule Kerr's
second assignment of error.
IV. Conclusion
{¶ 44} Although we disagree with the trial court's conclusion that Kerr was a fixed
situs employee, we must affirm the court's decision granting OhioHealth's motion for
summary judgment as Kerr's injury did not occur in the course of or arising out of his
employment. See Hassey v. Columbus, 10th Dist. No. 17AP-726, 2018-Ohio-3958, ¶ 33,
quoting Reynolds v. Budzik, 134 Ohio App.3d 844, 846 (6th Dist.1999), fn. 3 (stating that,
even when a trial court has stated erroneous reasons for its judgment, " 'an appellate court
must affirm the judgment if it is legally correct on other grounds' "); Joyce v. Gen. Motors
Corp., 49 Ohio St.3d 93, 96 (1990). Therefore, having sustained Kerr's first assignment of
No. 21AP-403 18
error but having overruled Kerr's second assignment of error, we affirm the judgment of
the Franklin County Court of Common Pleas.
Judgment affirmed.
LUPER SCHUSTER, P.J., and SADLER, J., concur.