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Foster v. Bureau of Workers' Compensation

Court of Appeals of Ohio, Second District

September 20, 2013

MELISSA J. FOSTER Plaintiff-Appellant
BUREAU OF WORKERS' COMPENSATION, et al. Defendant-Appellee

Civil Appeal from (Common Pleas Court) Trial Court Case No. 12-CV-2248

ARTHUR C. GRAVES, Atty. Reg. #0031027 Attorneys for Plaintiff-Appellant, Melissa J. Foster

RANDALL W. MIKES, Atty. Reg. #046945, and DAVID M. McCARTY, Atty. Reg. #0059539, Attorneys for Defendant-Appellee, Bridge Homecare Partners, LLC

LYDIA M. ARKO, Atty. Reg. #0085597, Attorney for Defendant-Appellee, Bureau of Workers' Compensation



(¶ 1} Melissa J. Foster appeals from the trial court's decision, order, and entry sustaining a motion for summary judgment against her in this workers' compensation appeal.

(¶ 2} In her sole assignment of error, Foster contends the trial court erred in upholding an administrative finding that she was not entitled to workers' compensation benefits.

(¶ 3} The record reflects that Foster worked as a quality-assurance supervisor for appellee Bridge Home Health Care Partners ("Bridge"). She had a fixed place of employment in office space leased by Bridge. The office building, located at 5335 Far Hills Avenue, was shared by several tenants. Parking areas surrounded the building, and parking was neither restricted nor assigned. Foster typically chose to park in a marked space along an access road in front of the building. On the day in question, she arrived for work and parked as usual. After exiting her car, she slipped and fell on snow-covered ice. The fall resulted in a fractured vertebrae and required surgery.

(¶ 4} Foster filed a workers' compensation claim as a result of the injury. The Industrial Commission denied the claim. Foster appealed to the trial court, which upheld the administrative ruling. The trial court reasoned that workers' compensation coverage was precluded for Foster, a fixed-situs employee, under the coming-and-going rule and that no exceptions applied. Therefore, the trial court entered summary judgment against her.

(¶ 5} On appeal, Foster maintains "that an employee injured in a parking lot immediately adjacent to the employer's work premises is injured in the course of and arising out of her employment." She additionally asserts that Bridge's lack of ownership of the area where she parked is not dispositive. She notes that Bridge did not own its office space either. According to Foster, Bridge provided parking for its employees. Although the lease made the landlord responsible for maintaining "parking areas, " Foster contends this fact "should not deprive an injured worker of a valid injury claim while falling in a parking lot furnished by the employer." Finally, she cites three cases that she claims support finding a compensable injury, Meszaros v. Legal News Publishing Co., 138 Ohio App.3d 645, 742 N.E.2d 158 (8th Dist.2000), Jesse v. May Dept. Stores Co, 11th Dist. Lake No. 2003-L-064, 2004-Ohio-5313, and Stair v. Mid Ohio Home Health, Ltd., 5th Dist. Richland No. 2010-CA-0114, 2011-Ohio-2351.

(¶ 6} We review a grant of summary judgment de novo, which means that "we apply the standards used by the trial court." Brinkman v. Doughty, 140 Ohio App.3d 494, 497, 748 N.E.2d 116 (2d Dist.2000). Summary judgment is appropriate when a trial court correctly finds "(1) that there is no genuine issue as to any material fact; (2) that the moving party is entitled to judgment as a matter of law; and (3) that reasonable minds can come to but one conclusion, and that conclusion is adverse to the party against whom the motion for summary judgment is made, who is entitled to have the evidence construed most strongly in his favor." Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 66, 375 N.E.2d 46 (1978).

(¶ 7} We see no error in the trial court's summary-judgment ruling. "In Ohio, 'an injury sustained by an employee is compensable under the Workers' Compensation Act only if it was received in the course of, and arising out of, the injured employee's employment.'" Kershner v. High Point Home Health, Ltd., 2d Dist. Miami No. 2012-CA-26, 2013-Ohio-1370, ¶12, quoting Fisher v. Mayfield, 49 Ohio St.3d 275, 276-277, 551 N.E.2d 1271 (1990). "The coming-and-going rule * * * is one used in determining whether an injury occurs 'in the course of, and arising out of, employment.'" Id. at ¶13, quoting MTD Prods., Inc. v. Robatin, 61 Ohio St.3d 66, 68, 572 N.E.2d 661 (1991).The rule generally precludes workers' compensation coverage for a fixed-situs employee who is injured while traveling to or from her place of employment because no causal connection between the injury and the employment exists. Id., quoting Mitchell v. Cambridge Home Health Care, Inc./PRI, 9th Dist. Summit No. 24163, 2008-Ohio-4558, ¶ 9.

(¶ 8} Here Foster does not appear to dispute that she was a fixed-situs employee, a conclusion supported by the uncontroverted facts. Foster's regular workplace was Bridge's leased office space, and her employment duties typically commenced only after her arrival at that designated location. See Kershner at ¶13. At the time of her fall, Foster admittedly had not yet commenced her employment duties. (See Foster depo. at 42.) Therefore, the trial court correctly found the coming-and-going rule applicable.

(¶ 9} The real issue before us is whether any exception to the rule applies. This court reviewed the possible exceptions in Janicki v. Kforce.Com, Inc., 167 Ohio App.3d 572, 2006-Ohio-3370, ...

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