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Are They Coming or Going? -- An Analysis of the Coming-And-Going Rule and How it Applies to Home Health Aides and Nurses

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The question of whether the "coming-and-going" rule applies to home health aides and nurses during their travel to and from patients' homes is a complicated one. It is also a question that courts in Ohio have had a difficult time answering.

In Ohio, a worker is eligible to receive Workers' Compensation benefits for an injury if the injury was (1) received in the course of the employee's work, and (2) arose out of the injured worker's employment.[1] The injury must meet both prongs of the statute: being in the course of employment and arising out of the employment activity.[2]

The "in the course of" prong relates to the time, place, and circumstances of the injury.[3] The "arising out of" prong refers to the causal connection between the employment and the injury, and whether there is sufficient causal connection between the injury and the employment.[4]

For employees with a fixed place of employment, the general rule is that the requisite causal connection is absent when an injury occurs while traveling to or from the workplace.[5] This is the "coming-and-going" rule. In the seminal case of Ruckman v. Cubby Drilling, Inc., the Ohio Supreme Court held that even when the employment calls for "periodic relocation of job sites," it may still constitute fixed-situs employment for purposes of the coming-and-going rule.[6] The Court held that, in determining whether an employee is a fixed-situs employee within the scope of the coming-and-going rule, the focus is whether the employee commences her substantial employment duties only after arriving at a specific and identifiable workplace designated by her employer.[7]

Like all good rules, the coming-and-going rule has several exceptions. An injured worker may still be eligible to participate in the Workers' Compensation Fund: (1) if the injury occurred within the "zone of employment," (2) if the injury was sustained because of a "special hazard" created by the employment, or (3) based upon the "totality of the circumstances."[8] The "zone of employment" is defined as the place of employment and the area thereabout, including the means of ingress thereto and egress therefrom, under control of the employer.[9] The "special hazard" exception applies where: (1) "but for" the employment, the employee would not have been at the location where the injury occurred, and (2) the risk is distinctive in nature or quantitatively greater than the risk common to the public.[10] The "totality of the circumstances" exception takes into account (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.[11]

Let me first address the exceptions to the coming-and-going rule and how these exceptions apply when a home health aide or nurse is injured while travelling to a patient's home. The short answer is that none of the exceptions should apply. First, injuries sustained on public roads do not occur in the "zone of employment" because employers do not have control over public roads.[12] Second, travel limited to Ohio, and specifically within a few counties, is not sufficient to create a "special hazard."[13] Finally, the "totality of the circumstances" test does not apply because employers do not control either the public street on which accidents occur or the negligent drivers who cause the accidents.[14]

The most difficult question for courts to answer is whether or not home health aides and nurses are "fixed-situs" employees. Several courts have denied home health aides' claims based upon the coming-and-going rule. In Gilham v. Cambridge Home Health Care, Inc., the Fifth Appellate District Court of Appeals found that a home health aide was a fixed-situs employee.[15] Gilham sustained an injury during a motor vehicle accident that occurred while she was driving between the homes of two of her patients.[16] The Court focused heavily on the fact the Gilham was not paid for her travel time.[17] The Court also noted that Gilham had no duties outside of her patients' homes.[18]

The Fourth Appellate District dealt with a similar case in Crockett v. Manorcare, Inc.[19] In Crockett, a home health aide was involved in a motor vehicle accident while traveling between two separate worksites.[20] The Court applied the coming-and-going rule and held that Crockett's injuries did not arise out of her employment.[21]

The Ninth Appellate District also addressed this issue in Mitchell v. Cambridge Home Health Care, Inc.[22] In Mitchell, the injured worker was a home health aide.[23] She was injured when she tripped and fell on a floor mat while exiting the elevator in her patient's apartment building.[24] At the time of her fall, she had finished her job duties for the day and was on her way home.[25] The Court found that Mitchell was subject to the coming-and-going rule and denied her claim.[26] Like the Court in Gilham, the Court in this case focused on the fact that the home health aide was paid only for her time with patients.[27] Further, other than some trips to pick up medication, her job duties took place in her patient's home.[28]

Several other courts have found that the "coming-and-going" rule does not apply to travel to multiple worksites during a workday. Notably, despite its earlier decision in Mitchell, the Ninth Appellate District held in a different case that the "coming-and-going" rule does not apply to travel to multiple fixed-situses during a given workday.[29] The Fifth District Court of Appeals has also recently issued a decision in seeming contradiction to its earlier holding in Gilham. In Friebel v. Visiting Nurse Association of Mid Ohio, the Court held that a home health nurse was not a fixed-situs employee.[30] The Court distinguished Friebel from Gilham by noting that Friebel was paid for her travel time or reimbursed for her travel expenses.[31] At the time of her accident, Friebel's children and two family friends were in the car because she intended to drop them off at the mall on the way to her patient's home.[32] The Court, however, found that her "dual intention" to go to her patient's home and to drop off her children did not disqualify her from receiving workers' compensation benefits.[33]

The employer appealed the Court's decision in Friebel and the Ohio Supreme Court was given its first opportunity to apply the coming-and-going rule to home health aides.[34] Unfortunately, the Supreme Court gave employers little direction in its decision. First, it held that Ohio has not adopted the "dual-intent" or "dual-purpose" doctrine relied upon by the Court of Appeals. The court then remanded the matter to the common pleas court, indicating that there remained questions of material fact in the dispute: (1) Was Friebel a fixed-situs employee?, (2) Was she on a personal errand at the time of injury?, and (3) Was she traveling her normal route to the patient's home?[35] In light of these questions of fact, the Supreme Court held that the matter may not be disposed of at the summary-judgment stage.[36]

Like many legal questions, the answer to whether or not the "coming-and-going" rule applies to home health aides and nurses during their travel to and from patients' homes is "it depends." The facts and circumstances of every case (and perhaps the Appellate District where the injury occurred) will determine whether an injured home health aide is a fixed-situs employee. The primary facts focused on by the courts relate to whether the employee was paid for travel time or reimbursed for travel expenses. The courts will also review what job duties, if any, are performed outside of patients' homes. Therefore, attorneys should take into consideration multiple issues before determining how to advise their clients on their work policies and whether or not to contest a workers' compensation claim filed by a home health aide incurred during travel to a patient's home.

[1] Ohio Rev. Code §4123.01(C)

[2] Fisher v. Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (1990)

[3] Id.

[4] Id. at 277-278

[5] MTD Products, Inc. v. Robatin, 61 Ohio St.3d 66, 572 N.E.2d 661 (1990), syllabus

[6] Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 119-120, 689 N.E.2d 917 (1998)

[7] Id. at 119.

[8] See MTD Products, Inc., 61 Ohio St.3d at 68-70

[9] Taylor v. Meijer, Inc., 182 Ohio App.3d 23, 2009-Ohio-1966, 911 N.E.2d 344, ¶19 (2d Dist.)

[10] MTD Products, Inc., 61 Ohio St.3d at 68

[11] Id. at 70

[12] See Foster v. Bureau of Workers' Compensation, 2nd Dist. Montgomery No. 25657, 2013-Ohio-4075, ¶12 (finding that a public access road was not in the control of the employer)

[13] Brown v. Lake Erie Electric Co., 12th Dist. Clermont No. CA2010-04-030, 2010-Ohio-4950, ¶19; see also Crockett v. Manorcare, Inc., 4th Dist. Scioto No. 03CA2919, 2004-Ohio-3533, ¶27

[14] MTD Products, Inc., 61 Ohio St.3d at 70.

[15] Gilham v. Cambridge Home Health Care, Inc., 5th Dist. Stark No. 2008 CA 00211, 2009-Ohio-2842,¶18

[16] Id. at ¶5

[17] Id. at ¶18

[18] Id.

[19] Crockett v. Manorcare, Inc., 4th Dist. Scioto No. 03CA2919, 2004-Ohio-3533

[20] Id. at ¶2

[21] Id. at ¶28

[22] Mitchell v. Cambridge Home Health Care, Inc., 9th Dist. Summit No. 24163, 2008-Ohio-4558

[23] Id. at ¶2

[24] Id.

[25] Id.

[26] Id. at ¶15

[27] Id. at ¶12

[28] Id.

[29] Miller v. Administrator, Bureau of Workers' Compensation, 9th Dist. Summit No. 24805, 2010-Ohio-1347, ¶23

[30] Friebel v. Visiting Nurse Association of Mid Ohio, Fifth Dist. Richland No. 2012-CA-56, 2013-Ohio-1646, ¶30

[31] Id. at ¶24

[32] Id. at ¶4

[33] Id. at ¶21

[34] Friebel v. Visiting Nurse Association of Mid Ohio, 142 Ohio St.3d 425, 2014-Ohio-4531, 32 N.E.3d 413

[35] Id. at ¶33

[36] Id.

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