“Coming and Going” Rule Used to Deny Workers’ Compensation Claim

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

HB 493 Amends Workers’ Compensation Laws

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.


Light Duty Offers

One of the goals of the workers’ compensation system is to get employees back to work as quickly and as safely as possible.  One way that employers may be able to bring employees back quickly is by offering light duty work to the employee.  In order to enable the employee to accept light duty work, it must accommodate any restrictions the employee’s physician of record may order with regard to physical activity.  Simply creating busy work for an employee to return to may not always be efficient and there are some employees who may be completely disabled due to their work injury or who may have restrictions that an employer cannot accommodate.  Accordingly, not all claims are open to this particular remedy.

However, where an employee has restrictions but cannot return to the former position of employment, employers should at least consider whether light duty work can be created.  In addition to getting the employee acclimated to working again and perhaps hastening the time in which the employee can return to the former position of employment, offers of light duty work can also be a means to bring and end to stagnating periods of temporary total disability.

Temporary total disability is a wage substitute for claims in which the employee, due to the work related injury has suffered a disability which prevents them from returning to the former position of employment.  Where the employer chooses not to provide salary continuation, the Bureau will pay wage substitute benefits to the employee.  Temporary total disability benefits can only be cut off under certain circumstances:

  • The employee returns to the former position of employment or any other work for any employer.
  • The employee is released by the employee’s physician to return to the former position of employment.
  • The employer offers the employee work within the employee’s physical capabilities.
  • The employee has reached maximum medical improvement.
  • The benefits have been paid due to a substantial aggravation of a preexisting injury and the injury has returned to the level it was prior to the aggravation.

Caution is advised as it is not enough to simply inform the employee that light duty work is available.  The offer must identify the position offered and must include a description of the duties required of the position and clearly specify the physical demands of the job.  For example, if the job will require lifting, information on the weight and frequency involved.  An oral job offer is acceptable, but if the employee refuses and the employer desires to use that refusal as a basis for terminating temporary total disability benefits, the offer must be reduced to writing.

Therefore, the best practice for any light duty offer would be to make the offer in writing, by certified letter, which clearly identifies the work available, and which clearly describes the duties and physical demands.  Skip the oral offer and start off with a written offer as it must be in writing to be enforceable in any case.

Ohio Supreme Court Rules Mental Condition Must be Caused by Physical Injury in Order to be Compensable Under the Workers’ Compensation System

Armstrong v. John R. Jurgensen Co., Slip Opinion No. 2013-Ohio-2237.

In a decision released June 4, 2013, the Ohio Supreme Court has affirmed that in order for a mental condition to be compensable under the Ohio workers’ compensation system, a compensable physical injury sustained by the claimant must cause the mental condition.

The facts of the case are that an employee was involved in a motor-vehicle accident while operating a one-ton dump truck in the performance of his job duties. The employee’s truck was struck from behind by another vehicle resulting in the death of the driver. After being transported to the emergency room, the employee was treated for physical injuries and released. He was distressed to learn, while in the emergency room, that the other driver had died.

The employee filed a workers’ compensation claim for his physical injuries, and his claim was allowed for cervical strain, thoracic strain, and lumbar strain. He subsequently requested an additional allowance for post traumatic stress disorder (“PTSD”). A hearing officer allowed the employees additional claim, finding his PTSD compensable because it was causally related to his industrial injury and his previously recognized conditions. The employer ultimately appealed to court. The parties did not dispute that the employee actually had the condition of PTSD, the dispute was over what caused it. Injured workers have the burden of proof to show that there injuries are causally related to the performance of their work duties.

The expert for the employer opined that the employee’s PTSD was caused by “the mental observation of the severity of the injury, the fatality, [and] the fact that it could have been life threatening to him at some point.” The expert further opined that the employee would have suffered PTSD regardless of his physical injuries. The trial court as well as the appeals court sided with the employer and the employee appealed to the Ohio Supreme Court.

R.C. 4123.01(C) defines “injury” for purposes of workers’ compensation. Psychiatric conditions are excluded from the general definition of “injury,” “except where the claimant’s psychiatric conditions have arisen from an injury or occupational disease sustained by that claimant.”

The Court recognized that no Ohio appellate court has ever recognized a workers’ compensation claim for mental injury or mental disease caused solely by job-related stress which is unaccompanied by physical injury or occupational disease. Accordingly the Court was not willing to broaden what it called unambiguous language in the statute.

Hence, for a mental injury to be compensable, it must arise from a compensable physical injury. Mental conditions, standing alone are not sufficient, nor are mental conditions which are contemporaneously incurred with a physical injury, but which are not caused by the physical injury.