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Green v. Marc Glassman, Inc.

Court of Appeals of Ohio, Eleventh District, Portage

December 29, 2017

BRANDON GREEN, Appellant,
v.
MARC GLASSMAN, INC., et al., Appellee.

          Civil Appeal from the Portage County Court of Common Pleas, Case No. 2016 CV 00502.

          Jennifer L Lawther, Daniel A. Kirschner, and Corey J. Kuzma, Nager, Romaine & Schneiberg Co., L.P.A., 27730 Euclid Avenue, Cleveland, OH 44132 (For Appellant).

          Michael J. Bertsch and Amy Berman Hamilton, Nicola, Gudbranson & Cooper, LLC, The Republic Building, 25 West Prospect Avenue, Suite 1400, Cleveland, OH 44115 (For Appellee).

          OPINION

          DIANE V. GRENDELL, J.

         {¶1} Appellant, Brandon Green, appeals the decision of the Portage County Court of Common Pleas, granting summary judgment in favor of appellee, Marc Glassman, Inc. The issue before this court is whether a workers' compensation claimant who was injured while driving home after working a third shift installing cash registers at a retail store is barred from receiving benefits by the "coming and going rule." For the following reasons, we affirm the decision of the court below.

          {¶2} On June 3, 2016, Marc Glassman, Inc. filed a Notice of Appeal from the March 7, 2016 Order and Decision of the Industrial Commission of Ohio allowing its employee, Brandon Green's, claim for benefits. According to the Commission's findings: "The Injured Worker was driving home after working a third shift at 3:05 AM, [on June 9, 2015, ] fell asleep at the wheel, and hit a large ditch going 55 miles per hour." The claim was allowed for laceration of the left foot and open fracture of the left calcaneus.

         {¶3} On September 12, 2016, Green filed a Petition and Complaint on Appeal against Marc Glassman and the Administrator, Bureau of Workers' Compensation, praying that "he be allowed to participate in the State Insurance Fund."

         {¶4} On October 13, 2016, the Administrator filed her Answer to the Complaint, praying that Green "be found entitled to continue to participate, under the workers' compensation laws of Ohio."

         {¶5} On November 7, 2016, Marc Glassman filed an Answer, demanding the dismissal of Green's Complaint.

         {¶6} On April 5, 2017, Marc Glassman filed a Motion for Summary Judgment.

         {¶7} On May 2, 2017, Green filed a Brief in Opposition. Attached to the Brief was Green's Affidavit attesting to the following:

3. I have been employed by Marc Glassman, Inc. * * * since February 26, 2014.
4. On or about October 14, 2014, I transferred to the Marc's store on West State Street ...

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