Fixed situs, non-fixed situs, special hazards, zone of employment, totality of circumstances, etc. All terms that we’re familiar with in dealing with compensability of a potential workplace injury under the coming and going rule. However, the phrase “dual-intent doctrine” is not one that often comes up in the hearing room, and via its ruling in Friebel v. Visiting Nurse Association of Mid-Ohio (2014-Ohio-4531), the Supreme Court of Ohio is keeping it that way. In rendering its decision, however, the Court failed to provide a uniform, bright-line rule or analysis in cases where there is a dual business and personal purpose to travel. Essentially, the Court instructed the lower courts that cases under the coming and going rule are not ripe for summary judgment given a conceptual plethora of genuine issues of material fact. All told, this is an extremely confusing ruling that creates more grey area than clarification for both sides of the bar. Below is a brief summary of the facts and the Court’s analysis to provide some insight as to what to expect in the future with coming and going cases.
The facts of the case are simple. The Plaintiff was a home healthcare nurse who provided in-home services to her employer’s clients. She traveled to and from these appointments in her personal vehicle. On the weekends, she was paid travel time and mileage from her residence to her first appointment as well as travel throughout the day and her return home. On the fateful Saturday morning, she was traveling with her children and two family friends in the vehicle, planning to drop her passengers off at the mall on the way to her first appointment. Prior to reaching the mall and dropping off her passengers, she was rear-ended.
Administratively, the Bureau allowed the claim for a neck sprain. After the employer appealed, the DHO denied the claim, ruling that the Plaintiff was not in the course and scope of her employment at the time of the injury due to the fact that she had not begun her actual job duties at the patient’s home. The SHO vacated the DHO Order and allowed the claim, determining that because the Plaintiff was to be paid both mileage and travel time from home to the first patient’s home, the injury was compensable. The Industrial Commission then denied the employer’s request for reconsideration.
The employer appealed the matter into the court of common pleas, which subsequently granted summary judgment in the employer’s favor, ruling that because the Plaintiff was on a personal errand, the injury neither arose out of nor occurred within the course of employment. The trial court also stated that it was immaterial that the Plaintiff was paid travel time and mileage, as she was traveling to the mall and not work at the time of the injury.
Upon the Plaintiff’s appeal, the 5th District reversed and remanded, determining that the injury indeed arose out of and occurred within the course of employment. The appellate panel determined that even though the Plaintiff intended to drop her passengers off, she had a dual intent to travel to her patient’s home. The court noted that when the accident occurred, the Plaintiff had not yet diverted from her course to her first appointment. The appellate court further stated that the Plaintiff would not have been at the place of the accident had she not been performing her employment duties. The employer then appealed this ruling to the Supreme Court of Ohio.
In its analysis of the law, the Supreme Court began by discussing the two familiar prongs of a compensable injury. The Court defined “within in the course of employment” as activity consistent with the contract for hire and logically related to the employer’s business. For the “arising out of” prong, the Court noted the requirement that there be a causal connection between the employment and the injury per the totality of the circumstances test from Lord v. Daugherty (the proximity to the workplace at the time of the accident, the degree of control the employer had over the scene of the accident, and the benefit received by the employer from the employee’s presence at the scene of the accident). The Court then auspiciously stated that similar cases are fact specific, and that there is no one test or analysis that can be said to apply to each and every factual scenario, going so far as to mention that “[t]he overarching consideration is that the statute must be accorded a liberal construction in favor of awarding benefits.”
Then, the Court made an interesting decision. Instead of reviewing the facts of the case, the Court clung to the appellate court’s referral to the Plaintiff’s dual intent. The Court noted that some jurisdictions follow the rule that if work creates the necessity for travel, then an injury will be deemed within the course of employment even though the travel is serving a personal service at the same time. If, however, the travel would have gone forward if the business purpose were not performed or was cancelled in route, then the travel was personal and the subsequent injury non-compensable. The Court also noted that it had previously rejected the dual-intent doctrine in Caldwell v. Indus. Comm., 155 Ohio St. 466, 99 N.E.2d 306 (1951).
Again, rather than looking at the facts of the case, the Court emphasized that Ohio has refused to create a blanket rule for employees injured while traveling with both a personal and employment purpose. Instead, the Court determined that the focus should be on the specific facts and circumstances of the case. However, the Court elected not to examine the facts, but rather attacked the appellate court’s “application” of the dual-intent doctrine, stating that simply because the Plaintiff dually intended to both travel to the patient’s home and drop off her passengers; she was not disqualified from being within the course of her employment because the accident occurred prior to her deviation. The Court went on to state that the appellate court could have just as easily concluded that the Plaintiff had not yet begun her employment, as she had not yet dropped off her passengers at the time of injury. All told, the Court reasoned that the dual intent doctrine served to shed little light on whether the Plaintiff’s actions were within the course and scope of employment.
Before remanding this case to the court of common pleas, the Court stated that the employee’s subjective intent regarding the purpose of his or her travel is not determinative as to whether the injury occurred in the course of and arise out of employment, as almost every occasion to travel for work may, at some point, involve both personal and employment purposes. Given the fact-specific nature of the workers’ compensation eligibility analysis, the Court held that the dual-intent doctrine has no place in analyzing the compensability of a claim. Not until this point did the Court discuss multiple potential issues of material fact, including whether the Plaintiff was a fixed-situs employee, whether she was on a personal errand at the time of injury, and whether she was traveling her normal route to the patient’s home. Justice O’Neill offered a dissent stating that the appellate court was correct to remand the case back to the trial court, as the Plaintiff deserved her day in court. However, Justice O’Neill chastised her colleagues for announcing a new rule of law in a case previously decided on summary judgment.
The Court’s decision has effectively added more cloudiness than direction. As Justice O’Neill points out in the dissent, it’s uncertain whether the Court’s decision is a reversal, an affirmance, or a modification. However, what is clear is the Court’s mandate that coming and going cases where there’s both a degree of personal errand and business purpose must go to a finder of fact and are not ripe for summary judgment. In this case, the Court certainly appears to be reaching to find issues of material fact, as it seems obvious that the Plaintiff was a non-fixed situs employee. However, by attacking the appellate court’s usage of the term “dual intent” (which the appellate court never identified as a doctrine it was following), the Court essentially punted the ball on its own mandate to carefully examine the facts of the case. The appellate court indeed tipped its hand, noting that the accident had occurred prior to the deviation to the mall. It would thus appear that the 5th District would have found this injury to be compensable. However, by remanding based upon the denouncement of the dual intent doctrine, the Court refused to give a black-letter rule (much less clarity) on how to analyze such cases, other than to state that summary judgment is not proper. The only clarification gained from this ruling is that interpretations from the appellate courts regarding coming and going cases will continue to have diverse results.