by Ryan LaFlamme | Jul 19, 2016 | Workers’ Compensation
An Ohio court has denied a workers’ compensation claim by an employee who was injured in a traffic accident while traveling to obtain paintbrushes to use at a job site.
The employee worked for a waterproofing company applying a special paint to newly constructed homes to waterproof the foundations. He received $50 plus mileage reimbursement for each house the employer assigned him to paint, and could typically complete five houses in a single day. His employer supplied the paintbrushes and paint. The employee obtained needed supplies at the headquarters but also stored some paint and paintbrushes at his house. He could also purchase supplies such as paintbrushes when needed and would be reimbursed.
On his day off, when the employee went to the headquarters to pick up his paycheck, his employer let him know that three jobs needed to be done that day. The employee’s brother was with him at the time. He decided to go home to pick up paintbrushes and then drop off his brother on the way to the job site. Before he reached his home to pick up the brushes, however, he was in an auto accident and sustained serious injuries.
The employee filed for and was granted workers’ compensation benefits after the accident, but the employer appealed. The employer lost at every administrative level, including at a hearing before the full Industrial Commission, which ultimately approved the prior allowances. The employer then appealed to the Franklin County Court of Common Pleas and won.
The employee then filed an appeal in the Tenth District Court, which analyzed the “coming and going” rule. According to this rule, an injured worker must prove that he or she was injured in the “course and scope of employment and that the injury arises out of the employment relationship.” The 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.”
The coming and going rule applies only to “fixed situs” employees, which are employees whose work location is assigned by the employer. An employee can be considered fixed situs even if the particular job location changes on a weekly or even daily basis. So long as the employee commences his or her substantial employment duties only after arriving at a “specific and identifiable workplace designated by the employer,” the employee will be considered fixed situs.
After determining that the claimant was a fixed situs employee, the court then analyzed whether the coming and going rule would be a bar to an allowance under the facts of the case. The court further determined that because the claimant was not required to store supplies at his house – but rather did so for his own convenience – he was not engaged in “substantial employment duties” when he travelled home to get the supplies. He did not begin his duties until he arrived at the job site. Accordingly, his accident did not occur within the course and scope of and arising out of the employment relationship.
The court also discussed exceptions to the coming and going rule that apply even to fixed situs employees. The “zone of employment” exception would permit an allowance for injury where the employee was injured in an area under the control of the employer, though perhaps not yet engaged in the performance of substantial job duties. A “special hazard” exception applies to employees who would not have been at the location of the injury but for the employment, and the employment itself creates a special risk “distinctive in nature or quantitatively greater than the risk common to the public.” The “special mission” exception applies when the injury is sustained by the employee while performing a special task, service, mission, or errand for his employer, even before or after customary working hours, or on a day on which he does not ordinarily work. Finally, a “totality of the circumstances” exception looks at all of the relevant factors of the accident to determine (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.
The Tenth District Court found that none of the exceptions apply and upheld the trials court’s denial of benefits.
If you have an employee who has been injured while traveling to or from a job location, all of the facts must be carefully analyzed to determine whether you are likely to succeed in a challenge asserting the coming and going rule. Please do not hesitate to contact Ennis Britton to assist in that analysis.
Cunningham v. Bone Dry Waterproofing, Inc., 2016-Ohio-3341
by Ryan LaFlamme | Jan 18, 2016 | General
The University of Toledo undertook a construction project consisting of an addition connecting two existing portions of the University’s hospital and a remodel of existing hospital space. The University hired an electrical contractor for the electrical trades work on the project. There were a number of delays on the project including material deliveries and progress of the work itself. There were additional issues with the project schedule that caused the electrical contractor to have to accelerate its work at additional expense.
The contractor, from time to time, issued letters to the University outlining various issues on the project and their impacts on the contractor’s work. Ultimately, about a month after the contractor’s work was substantially complete, the contractor provided the University with a “certified claim” in the amount of $450,898.29 representing additional compensation the contractor was due from the University due to the various delays and issues on the project that were not the fault of the contractor. The dispute was not resolved informally and a suit was filed by the contractor in the amount of $473,455.00.
In its defense, the University asserted that the contractor failed to comply with the procedures for submitting a claim to the University as required by the construction contract. The contract provided that any claims must be asserted within ten days of the time the event which gave rise to the claim occurred. According to the contract, failure to do so would result in a waiver of the contractor’s claim. Additionally, once the claim was submitted, there were additional steps required of the contractor to substantiate the claim. These too were not fully complied with by the contractor.
The Court of Claims sided with the University finding that the contractor did indeed fail to comply with the contractor claims requirements of the contract. Hence, even if the contractor was correct in its claim and was entitled to additional compensation, its failure to comply with the contractual procedures for submitting claims to the project owner had the effect of waiving such claims.
Districts should be aware that the burden is on them to prove a defense of non-compliance with contractual requirements. The District’s construction managers, architects, and owner representatives should take care to fully document the chain of events regarding any contractor claims in the event it becomes necessary to assert a defense such as this.
IPS Elec. Servs., L.L.C. v. Univ. of Toledo
by Ryan LaFlamme | Oct 27, 2015 | Board Policy & Representation, Construction & Real Estate
Stetz v. Copley Fairlawn School Dist., 2015-Ohio-4358
The Ninth Appellate District Court of Appeals has reaffirmed political subdivision immunity for public school districts in a slip and fall case. The Copley Fairlawn School District was sued after a student slipped and fell. The student worked in the office during her study hall. During her office time, the student was directed by a vice principal to go and change the letters on a marquee. The student did so and reentered the building. Forty five minutes after re-entering the building, the student slipped as she began to descend a stair case. The student fell backwards and hit her head on concrete. The student did not recollect any water being present on the floor at the time of her fall.
The school moved for summary judgment on the basis that it was immune from suit under Ohio law. The trial court denied summary judgment, finding that there were genuine issues of fact in dispute for the jury to decide as to whether an exception to immunity applied.
There are five exceptions to political subdivision immunity provided by Revised Code Chapter 2744. If one of these exceptions applies, the school district is not protected by immunity. The exceptions for which political subdivisions (including school districts) are liable for injury, death, or loss to person or property are as follows:
1. The negligent operation of any motor vehicle by their employees when the employees are engaged within the scope of their employment and authority.
2. The negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions.
3. Negligent failure to keep public roads in repair to remove obstructions from public roads.
4. Injury, death, or loss to person or property that is caused by the negligence of employees and that occurs within or on the grounds of, and is due to physical defects within or on the grounds of, buildings that are used in connection with the performance of a governmental function (e.g., a school building).
5. Civil liability is expressly imposed upon the political subdivision by a section of the Revised Code
The student here argued that the buildings and grounds exception (number 4 above) applied. However, the Court of Appeals found that the student had not set forth sufficient evidence that there was a defect in the building where she fell or that the school employees were negligent. Particularly here, the defect would have been that the staff permitted a wet substance to remain on the floor causing a safety hazard. The court found that there was not sufficient information to determine if the floor was even wet at the time she fell, let alone whether a hazard had negligently been permitted to remain. Accordingly the school district was entitled to immunity and the case was dismissed.
Districts should keep in mind that while they may be protected by the immunity grants of Chapter 2744, immunity is not automatic as there are exceptions to the rule.
by Ryan LaFlamme | Oct 20, 2015 | Labor and Employment, Unemployment
Friedel v. Quota, 2015-Ohio-4060
The Sixth Appellate District (Williams County) has reversed a trial court ruling which overturned the unemployment Commission’s (ODJFS) grant of benefits to a truck driver who quit his job. At the initial hearing, the truck driver claimed to have quit because his truck broke down and his employer refused to assist.
The truck driver claimed that the employer provided debit card did not have enough funds to make the repairs, that the employer refused to assist because he was intoxicated and that he had to summon his son-in-law to the scene for assistance, who had to drive eighty miles in the middle of the night.
The employer testified that his understanding at the time of hire was that the employee was able to make minor repairs, that there were in fact sufficient funds on the card provided, that the employer recommended he call his son-in-law because he was employed as a road services tech and that the trip was only thirty miles.
ODJFS found in favor of the employer denying the benefits and finding that the employee quit without just cause. The employee appealed. At the appeal hearing, the truck driver claimed for the first time that he quit because his employer asked him to violate federal regulations regarding down time for truck drivers who have driven a certain number of hours. The employee claimed that the employer insisted that he drive a route in violation of law. This caused an argument to ensue and the employee quit. The employer did not participate and the initial decision was reversed, finding that the employee had just cause to quit and was therefore entitled to benefits.
The employer unsuccessfully appealed to the Review Commission and then to the trial court. Before the court, the employer challenged the employee’s credibility by questioning why the employee set forth his most recent justification for the first time on appeal. The trial court agreed finding that the employee had really quit because of the roadside breakdown incident and found in favor of the employer.
ODJFS appealed to the Sixth Appellate District. There, the Court reviewed the standard on appeal. Courts reviewing decisions of the Unemployment Commission are to limit their inquiry as to whether the decision by unemployment is “unlawful, unreasonable, or against the manifest weight of the evidence.” This is a high standard. That reasonable minds might disagree is not enough for a court to overturn the unemployment decision so long as there is “some competent, credible evidence in the record” to support it. The Appellate Court found that the Trial Court had improperly considered the credibility arguments on appeal because there is no rule providing that a claim or defense is waived if not made in the initial application or hearing.
Accordingly there are lessons to be learned from this case:
1. Do not rest until the fight is finished. Here, the employer did not participate in the appeal where the employee’s ultimately successful argument was made. Credibility could have been attacked at this time, rather than improperly before the court. Therefore, make sure you are represented and are participating at all levels of the appeal.
2. The standard on appeal to a court of common pleas is difficult. Courts are generally limited to the record provided by ODJFS. The scope of the review by the court is limited as to whether the hearing officer’s decision was “unlawful, unreasonable, or against the manifest weight of the evidence.”
Please do not hesitate to contact an attorney at Ennis Britton Co., L.P.A., with your questions regarding unemployment.
by Ryan LaFlamme | Sep 10, 2014 | Workers’ Compensation
Along with the Mid-Biennium Budget Review and other education related bills signed into law earlier this summer, HB 493 became law and becomes effective on September 17, 2014. This bill focuses solely on the workers compensation system and impacts all employers, including school districts. These are mostly fiscal changes and some of the highlights are as follows:
1. Requires, rather than permits as under former law, the Administrator of Workers’ Compensation (the “Administrator”) to calculate workers’ compensation premiums for most employers on a prospective, rather than retrospective, basis, beginning policy year 2015. Public employers, other than state agencies, will transition to prospective payment of premiums by the policy year commencing on January 1, 2017.
2. Allows the Administrator to adopt rules to permit periodic premium payments and to set an administrative fee for these periodic payments.
3. Revises the requirements for qualified public sector payroll reports. For each policy year commencing on or after January 1, 2016, BWC must to furnish to the fiscal officer of each taxing district public employer (which includes school districts), by November 1, forms showing the estimated premium due from the public employer for the forthcoming policy year. On or before February 15 immediately following the conclusion of a policy year, the fiscal officer must report the amount of money expended by the public employer during the policy year for the services of employees covered by Ohio’s Workers’ Compensation Law. BWC must then reconcile the report with the premiums and assessments charged to the public employer to account for the difference between estimated gross payroll and the actual gross payroll. The public employer must immediately pay any balance due to BWC, and any balance found due to the public employer must be credited to the public employer’s account.
4. Increases, beginning in policy year 2015, the additional amount of premium or assessment due from an employer who fails to timely submit a payroll report from 1% of the amount due to 10% of the amount due and eliminates the cap for the penalty amount.
5. Requires, beginning in policy year 2015, the Administrator to adopt a rule to allow the Administrator to assess a penalty on an employer who fails to pay a premium or assessment when due at the interest rate established by the State Tax Commissioner for most delinquent taxes and eliminates the existing tiered penalty system.
6. Eliminates the requirement to obtain Ohio coverage for an out-of-state employee who temporarily works in Ohio if the employee’s home state law lacks a provision similar to the Ohio law that exempts out-of-state employees temporarily working in Ohio from the duty to obtain Ohio coverage.
7. Allows the Administrator to pay for the first fill of prescriptions occurring during an earlier timeframe than under continuing law (normally after either the Staff Hearing Officers determination of the issue or the final judicial determination, if applicable). The Bill also allows for the first fill of prescriptions to be charged to the Surplus Fund Account if the claim is ultimately denied and the employer is a state fund employer who pays assessments into that account.
8. Eliminates the requirement that most self-insuring public employers annually obtain an actuarial report certifying the sufficiency of reserved funds to cover the costs that the employer may potentially incur under Ohio’s Workers’ Compensation Law and the reliability of computations and statements made with regard to those funds.
9. Permits a state fund, taxing district employer (which includes a school district) to participate in the “One Claim Program.” Under that Program, the employer may mitigate the impact of a significant claim that comes into the employer’s experience for the first time and that is a contributing factor in the employer being excluded from a group-rated plan under the BWC’s group rating program. Under former law, only private sector state fund employers could participate in the One Claim Program.
Please feel free to contact us to discuss these or any other changes and for general workers’ compensation related inquiries.
