Ohio Social Worker’s Slip and Fall Injuries in Icy Restaurant Parking Lot Did Not Arise from His Employment

An Ohio appellate court disagreed with the trial court’s conclusion that a social worker was a fixed situs employee whose injuries sustained when he slipped and fell in a restaurant parking lot were not compensable under Ohio’s coming and going rule. The court found, however, that the employee nevertheless could not recover workers’ compensation benefits since his injuries did not arise out of his employment [Kerr v. OhioHealth Corp., 2022-Ohio-2697, 2022 Ohio App. LEXIS 2548 (Aug. 4, 2022)]. The social worker was not attending a business meeting. His presence at the restaurant was the result of his own decision. His risk of injury in the parking lot was essentially the same as that of the general public.

Background

Kerr worked for OhioHealth as a social worker in its hospice department. OhioHealth required that Kerr travel to see his patients in the personal residence or nursing facility where the patient was located. Kerr’s assigned geographic area was Franklin County, Ohio, and OhioHealth generally assigned Kerr to patients located in the Clintonville and Linden neighborhoods. Kerr drove his personal vehicle to patient visits and typically visited four or five patients a day. OhioHealth reimbursed Kerr’s mileage and provided him with a cell phone and laptop computer.

Kerr worked on a hospice team which consisted of himself, a nurse, a case manager, and a chaplain. In January 2019, Reverend Nooks was the chaplain on Kerr’s hospice team. Generally speaking, Kerr and his team coordinated their schedules through text, phone, or e-mail.

On January 25, 2019, Kerr and Reverend Nooks drove together in Kerr’s car to patient visits which began at 10:30 a.m. at a nursing home. Kerr and Reverend Nooks would often conduct patient visits together and were personal friends. As Kerr and Reverend Nooks’ morning appointments concluded by 11:45 a.m., and they did not have another scheduled visit until 1:30 p.m., they decided to go to lunch. They went to the Rusty Bucket restaurant in Clintonville because it was “en route” to their 1:30 p.m. patient visit at a residence in the same neighborhood.

Kerr parked his car in the restaurant’s parking lot. As he and Reverend Nooks walked toward the restaurant, Kerr slipped and fell on ice in the parking lot. He sustained a concussion and a right wrist fracture. Kerr sought workers’ compensation benefits, but a district hearing officer (DHO) denied his application, concluding Kerr did not receive his injuries in the course of or arising out of his employment with OhioHealth. A commission staff hearing officer affirmed the DHO’s order, and the commission refused further appeal. Kerr filed an action in the trial court, pursuant to Ohio Rev. Code § 4123.512, asserting that he had a right to participate in the workers’ compensation fund for his injuries.

Coming and Going: Fixed Worksite?

OhioHeath filed a motion for summary judgment, which the trial court granted. The court held that the location of each of Kerr’s patient visits was a fixed worksite. As such, the court held the coming-and-going rule prevented Kerr from participating in the fund. The court further held that, even if Kerr was not subject to the coming-and-going rule, Kerr’s injuries did not occur in the course of or arising out of his employment.

Appellate Court’s Decision

Citing and discussing a long line of decisions, the appellate court disagreed with the Commission’s ruling that Kerr had a fixed worksite. Noting that Kerr had significant duties other than visiting with patients, the court said the evidence, when viewed in a light most favorable to Kerr, indicated that he was not a fixed employee. As a non-fixed situs employee, Kerr was not subject to the coming and going rule. For Kerr, however, that did not mean his injuries were compensable.

Arising Out of Employment

The court observed that Kerr was not provided a formal lunch hour by OhioHealth. It did not reimburse him for lunch, nor did it deduct his lunch expenditures as a business expense. Kerr acknowledged that as far as lunch went, he was on his own. He was not instructed either when or where to eat. While it was true that he planned to eat on the day of his injury with the chaplain, that was his choice (and the chaplain’s); it was not a designated business lunch or meeting.

The court acknowledged that had Kerr been injured traveling on the public streets from one patient to another, his injuries would likely have arisen from the employment. Here, however, he had merely stopped for lunch and faced essentially the same risk of slipping and falling on ice as did the general public. The court was not persuaded by Kerr’s argument that his lunches furthered the employer’s business. Having a well-fed group of employees benefits virtually any business, but not sufficiently to bring the lunch within the employment.