Ohio Home Health Aide’s Injuries Outside Client’s Residence Not Compensable
An Ohio appellate court affirmed the denial of workers’ compensation benefits to a home health care aide who sustained a T12 vertebrae compression fracture when she slipped and fell on wet grass on her client’s property after clocking out from her two-hour shift [McAlpine v. McCloud, 2021-Ohio-2430, 2021 Ohio App. LEXIS 2386 (July 16, 2021)]. Acknowledging that the undisputed evidence was that the aide had heard a loud noise as she exited her client’s residence and that she had walked around to the side of the residence to determine the nature of the noise when she slipped and fell, the court agreed that the injury claim was barred by the “coming and going” rule [a/k/a the “going and coming” rule; see Larson’s Workers’ Compensation Law, § 13.01, et seq.] and that no exception to the rule applied to the facts of the case.
Background
McAlpine worked as a home health aide for Choice Health for approximately 13 years. Throughout that time, she provided care for Wilkins, whom McAlpine had recommended to Choice Health as a client. For several years, Wilkins was McAlpine’s only patient. The two had been close friends since they were in high school. As Wilkins’s home health aide, McAlpine worked three two-hour shifts at Wilkins’s home, seven days per week. Her shifts began at 8:00 a.m., 1:00 p.m., and 7:00 p.m. McAlpine typically left the residence after each shift, but sometimes stayed and talked or watched television with Wilkins. Once in a while, such as when Wilkins needed additional care upon returning home after a hospital stay, McAlpine stayed at Wilkins’ home overnight.
On September 7, 2019, McAlpine worked her 8:00 a.m. shift and clocked out at 10:00 a.m. At approximately 10:15 a.m., she went onto the front porch of Wilkins’ home to leave and heard a loud noise on the right side of the house. She descended the porch stairs, stepped into the grass, and went around the right side of the house to investigate. She did not see anything. As McAlpine approached a small concrete divider wall on Wilkins’ property, she slipped and fell on the wet grass, sustaining a T12 vertebrae compression fracture.
McAlpine sought workers’ compensation benefits for her injury. A district hearing officer of the Ohio Industrial Commission disallowed McAlpine’s claim, concluding that she did not sustain an injury arising out of her employment. Upon review, the OIC staff hearing officer reached a similar conclusion. He found that as McAlpine departed from Wilkins’ house, she removed herself from activity in the course of and arising out of her employment when she departed from the walkway in order to investigate a noise that she perceived to come from the side of her friend's house. The hearing officer found McAlpine’s injury did not arise from her employment, but rather out of the relationship with her friend. The OIC refused further appeal.
Trial Court: Going and Coming Rule
McAlpine then filed a complaint in the common pleas court, appealing from the denial of her claim for workers’ compensation. Her employer argued that the coming-and-going rule barred McAlpine’s claim. granted the employer’s cross-motion for summary judgment, concluding that no genuine issue of material fact existed as to whether McAlpine was going from her place of employment at the time she went to check on a noise she heard around the side of Ms. Wilkins’ house since she had clocked out after her first shift. The court further concluded that, as a result, McAlpine’s claim was precluded by the coming-and-going rule and no exception to the rule applied. McAlpine appealed.
Appellate Court’s Decision
The appellate court initially noted that the “coming-and-going” rule commonly precludes workers’ compensation coverage for an employee with a fixed place of employment who is injured while traveling to or from her place of employment because no causal connection exists between the injury and the employment. The court further observed that the Ohio Supreme Court had identified three limited exceptions to the application of the coming-and-going rule:
- The zone of employment exception;
- The special hazard exception; and
- The totality of the circumstances exception.
The Exceptions to the Coming and Going Rule
The court noted that the zone-of-employment exception rendered an injury compensable if it occurred within the zone of employment. Quoting Janicki v. Kforce.com, 167 Ohio App.3d 572, 2006-Ohio-3370, 855 N.E.2d 1282 (2d Dist.), the court said “zone of employment” was defined as “the place of employment and the area thereabout, including the means of ingress thereto and egress therefrom, under control of the employer” [Janicki at ¶ 20].
The court added that the special-hazard rule allows an employee to recover workers’ compensation benefits when the employment creates a special hazard and the employee’s injury results from that hazard. According to the court, the rule applied where but for the employment, the employee would not have been at the location where the injury occurred, and the risk was distinctive in nature or quantitatively greater than the risk common to the public.
The court also stated that the totality-of-the-circumstances test required primary analysis of the following facts and circumstances:
- Proximity of the scene of the accident to the place of employment,
- The degree of control the employer had over the scene of the accident, and
- The benefit the employer received from the injured employee’s presence at the scene of the accident.
Appellate Court’s Analysis
The appellate court noted that McAlpine argued that her specific and identifiable work place was Wilkins property, and because her injury occurred at her work site, the coming-and-going rule did not apply. The appellate court disagreed with McAlpine that the entirety of Wilkins property necessarily constituted the employment premises in the case.
The court stated that McAlpine generally performed her job duties inside her clients residence. McAlpine testified during her deposition that her duties included cleaning, cooking, assisting with bathing, and running errands. McAlpine’s testimony reflected that her substantial duties began upon entering Wilkins home, where her client was bedbound. McAlpine did not provide any evidence that she had any duties in Wilkins’ yard, and although she sometimes ran errands for her client, she provided no evidence that she was in the process of running an errand for Wilkins in her capacity as an employee at the time of the injury. To the contrary, McAlpine acknowledged that she had clocked out at the end of her morning shift, had exited the home, and was heading to her vehicle when she entered Wilkins yard and fell. The appellate court concluded that under these circumstances, the trial court correctly found that the coming-and-going rule, was applicable.
The court added that even construing the evidence in the light most favorable to McAlpine, none of the exceptions to the coming-and-going rule applied. First, nothing in the record supported a conclusion that McAlpine’s employment created a special hazard and that her injury resulted from that hazard. Second, the zone of employment exception did not apply. Wilkins’ property was not under the custody or control of the employer. Hypothetically, stressed the court, if the path of travel from Wilkins’ front door to McAlpine’s vehicle fell within the zone of employment, McAlpine admittedly deviated from that path to check on a noise around the side of the home. Finally, the record did not support a conclusion that McAlpine’s injury was compensable under the totality of the circumstances.
Although McAlpine’s injury occurred on Wilkins’ property, it did not occur while she was headed toward her car following the end of her shift. Rather, McAlpine went around the side of Wilkins' home to check on a noise and fell in the wet grass. The court closed by saying that regardless of the location of McAlpine’s injury, she was required to present evidence that her injuries occurred in the course of and arising out of her employment. In the court’s view, the evidence did not support that conclusion.