Court of Appeals of Ohio, Second District, Montgomery
Appeal from Common Pleas Court Trial Court Case No.
D. PLUNKETT, Atty. Reg. No. 0046805, RACHEL D. SIEKMAN, Atty.
Reg. No. 0091012, 3033 Kettering Boulevard, Suite 201,
Dayton, Ohio 45439 Attorneys for Plaintiff-Appellant
C. KORTE, Atty. Reg. No. 0019382, MICHELLE D. BACH, Atty.
Reg. No. 0065313, JOSHUA R. LOUNSBURY, Atty. Reg. No.
0078175, Attorneys for Defendant-Appellee-PSA Airlines, Inc.
P. FRANZEN, Atty. Reg. No. 0092532, Attorney for
Defendant-Appellee-Bureau of Workers' Compensation
1} Plaintiff-Appellant, Aysha Osten, appeals from a
judgment dismissing her appeal from a decision of
Defendant-Appellee, Sarah D. Morrison, Administrator of the
Bureau of Workers' Compensation ("BWC"). Osten
contends that the trial court erred when it concluded that
she did not have a right to participate in the Workers'
Compensation Fund as a matter of law.
2} We conclude that the trial court correctly found
that Osten, a traveling employee, was on a personal errand at
the time of her injury and was not entitled to receive
workers' compensation benefits. Accordingly, the judgment
of the trial court will be affirmed.
Facts and Course of Proceedings
3} On January 27, 2016, Aysha Osten was employed as
a flight attendant by Defendant-Appellee, PSA Airlines, Inc.
("PSA"). After completing her flight for the day at
about 12:30 p.m., Osten checked into a Hampton Inn located
near LaGuardia Airport in New York City. That evening, after
going to dinner with other PSA employees, Osten fell on a
public sidewalk while returning to the Inn, and sustained
injuries to her wrists and knees.
4} Osten applied for Workers' Compensation and
was initially approved for benefits based on contusions of
the wrists and knees. However, on April 14, 2016, a district
hearing officer vacated the order of the administrator and
denied benefits to Osten. The decision was based on a
conclusion that the injury occurred in the course of
Osten's own errand, not on an errand of PSA, and that the
errand was not sufficiently connected to Osten's
5} Osten appealed, but a staff hearing officer
affirmed the decision on May 27, 2016. After the BWC denied
further appeal, Osten filed a notice of appeal and a
complaint with the trial court on July 29, 2016, naming the
BWC and PSA as defendants. Subsequently, PSA and Osten filed
cross-motions for summary judgment in March 2017. BWC did not
file a summary judgment motion, but agreed with PSA's
position. The trial court then rendered summary judgment in
PSA's favor in May 2017, finding that Osten was on a
personal errand at the time of her injury and was not
entitled to participate in the workers' compensation
fund. The court, therefore, dismissed Osten's case. Osten
timely appealed from the trial court's decision.
Entitlement to Participate in the Workers' Compensation
6} Osten's sole assignment of error states that:
The Trial Court Erred When It Failed to Find that Appellant
Was a Traveling Employee Who Has a Right to Participate in
the Workers' Compensation Fund as a Matter of Law.
7} Under this assignment of error, Osten contends
that she was not on a personal errand at the time of her
injury. Her argument is based on several factors, including
her receipt of an hourly wage during travel, her
employer's mandate that she stay at a particular hotel,
and the emphasis in the union contract on the nutritional
needs of flight crews.
8} As was noted, the trial court granted summary
judgment against Osten and dismissed her complaint for
benefits. "A trial court may grant a moving party
summary judgment pursuant to Civ. R. 56 if there are no
genuine issues of material fact remaining to be litigated,
the moving party is entitled to judgment as a matter of law,
and reasonable minds can come to only one conclusion, and
that conclusion is adverse to the nonmoving party, who is
entitled to have the evidence construed most strongly in his
favor." Smith v. Five Rivers MetroParks, 134
Ohio App.3d 754, 760, 732 N.E.2d 422 (2d Dist.1999), citing
Harless v. Willis Day Warehousing Co., 54 Ohio St.2d
64, 375 N.E.2d 46 (1978). "We review decisions granting
summary judgment de novo, which means that we apply the same
standards as the trial court." (Citations omitted.)
GNFH, Inc. v. W. Am. Ins. Co., 172 Ohio App.3d 127,
2007-Ohio-2722, 873 N.E.2d 345, ¶ 16 (2d Dist.).
9} The Workers' Compensation Act is codified in
R.C. Chap. 4123. Injuries that employees sustain are
compensable for purposes of the Workers' Compensation Act
only if they were " ' "received in the course
of, and arising out of, the injured employee's
employment." ' " Fisher v. Mayfield,
49 Ohio St.3d 275, 276, 551 N.E.2d 1271 (1990), quoting
Bralley v. Daugherty, 61 Ohio St.2d 302, 401 N.E.2d
448 (1980). (Other citations omitted.) " The test of the
right to participate in the Workers' Compensation Fund is
not whether there was any fault or neglect on the part of the
employer or his employees, but whether a "causal
connection" existed between an employee's injury and
his employment either through the activities, the conditions
or the environment of the employment.' " (Citations
omitted.) Id. at 276-277.
10} The coverage formula of " 'in the
course of and arising out of " employment is
conjunctive, and applicants must meet all elements of the
formula to recover under the Act. Fisher at 277. The
term " 'in the course' " is associated with
"the time, place and circumstances of the injury, "
while " 'arising out of * * * contemplates a causal
connection between the injury and the employment."
Id. at 277-278.
11} Regarding the first prong, benefits are limited
"to employees who sustain injuries while engaged in a
required employment duty or activity consistent with their
contract for hire and logically related to the employer's
business." Friebel v. Visiting Nurse Assn. of
Mid-Ohio, 142 Ohio St.3d 425, 2014-Ohio-4531, 32 N.E.3d
413, ¶ 13, citing Ruckman v. Cubby Drilling,
Inc., 81 Ohio St.3d 117, 120, 689 N.E.2d 917 (1998).
12} With respect to the second prong, which relates
to "arising out of" employment, the existence of a
sufficient causal connection "depends upon the
'totality of the facts and circumstances' regarding
the accident." Lord v. Daugherty, 66 Ohio St.2d
441, 444, 423 N.E.2d 96');">423 N.E.2d 96 (1981); Fisher, 49 Ohio
St.3d at 277, 551 N.E.2d 1271. These "circumstances
include: (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." (Citation
omitted.) Lord at 444. Accord Friebel at
¶ 14; Fisher at 277. This list of factors is
not exclusive, but is "intended to be illustrative of
the factors that need to be considered." Fisher
at 279, fn.2. Furthermore, the coverage requirements are
liberally construed in an employee's favor. (Citation
omitted.) Id. at 278.
13} In Friebel, the Supreme Court of Ohio
commented that in addition to the above factors, "
'similar fact patterns have promulgated their own set of
rules.' " Id. at ¶ 15, quoting
Fisher at 280. As an illustration, the court noted
that "for employees who travel regularly for work and
who are injured away from the workplace during an
employment-related trip, courts have generally held that the
employee is entitled to ...