Buck v. Melco

923 N.E.2d 1191

185 Ohio App.3d 281

2009 Ohio 6872

BUCK, Appellee,

v. MELCO, INCORPORATED, Appellant;Administrator, Bureau of Workers' Compensation, Appellee.

No. 11-09-06.

Court of Appeals of Ohio, Third District, Paulding County.

Decided: Dec. 28, 2009.

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Thomas R. Sant, Columbus, for appellant.

Martha Joyce Wilson, Toledo, for appellee.

SHAW, Judge.

{¶ 1} Defendant-appellant, Melco, Inc. ("Melco"), appeals the June 5, 2009 judgment entry of the Paulding County Common Pleas Court granting summary judgment in favor of plaintiff-appellee, Dennis Buck, finding that Buck's injury occurred in the course of and arose out of his employment with Melco.

{¶ 2} The facts relevant to this appeal are as follows. Buck was employed by Melco as a heavy-equipment operator. In September 2005, he was hired to do excavation at the Auglaize Quarry in Paulding County. This jobsite was located approximately 70 miles from Buck's home in Toledo. Buck customarily left his home early to ensure that he arrived at the site on time. His shift was scheduled to begin at 7:00 a.m. However, it was customary for the employees to enter the quarry at 6:30 a.m., when the foreman arrived, to start the machines and be ready to perform promptly at 7:00 a.m.

{¶ 3} On October 5, 2006, Buck arrived at the Auglaize Quarry at approximately 5:30 a.m. He parked his truck near the gate of the quarry where Melco instructed its employees to park. Sometime between 5:45 a.m. and 6:00 a.m., the following series of events took place. Buck exited his vehicle to use the port-a-john located adjacent to the designated parking area. As he left the port-a-john to return to his vehicle, he was accosted by three men demanding money. An altercation ensued and Buck was severely beaten. During the struggle, Buck sustained an injury to his shoulder and received lacerations on his face and forearm from a switchblade knife used by one of the men. The men then robbed Buck and left the site in a pickup truck. About ten minutes after the assault, some of Buck's co-workers arrived on the scene and assisted him. The foreman arrived at approximately 6:30 a.m. and called law enforcement, who came to the scene and prepared an incident report. Buck was admitted to the Paulding County Hospital where the incident was documented and his injury was diagnosed as a left shoulder contusion.

{¶ 4} Buck filed an application with the Bureau of Workers' Compensation and with the Industrial Commission of the State of Ohio for an injury sustained in the course of and arising out of his employment with Melco. Both the district hearing officer and the staff hearing officer for the Industrial Commission allowed the claim, concluding that the injury occurred in the course of and arose out of Buck's employment. Melco appealed to the Industrial Commission, which refused to consider further appeal. Melco then appealed to the Paulding County Court of Common Pleas pursuant to R.C. 4123.512.

{¶ 5} The parties did not dispute the causal relationship between the assault and Buck's injured shoulder. The parties

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also entered a stipulation of facts with several exhibits attached, including the incident report completed by law enforcement The only issue on appeal before the trial court was whether Buck's injury occurred within the course of and arising out of his employment with Melco. The parties filed cross motions for summary judgment.

{¶ 6} On June 5, 2009, the trial court granted Buck's motion for summary judgment, finding that the injury was compensable, and consequently denied Melco's motion for summary judgment.

{¶ 7} Melco now appeals, asserting a single assignment of error.

The trial court erred in sustaining plaintiff-appellee's motion for summary judgment and overruling defendant-appellant's motion for summary judgment.

{¶ 8} When reviewing a summary-judgment ruling made by a court of common pleas from an appeal of a decision by the Industrial Commission, an appellate court applies the same standard used to review any other summary-judgment ruling. Conley-Slowinski v. Superior Spinning & Stamping Co. (1998), 128 Ohio App.3d 360, 363, 714 N.E.2d 991. The appellate court review of summary judgment is made independently and without any deference to the trial court. The standard of review for a grant of summary judgment is de novo. Hasenfratz v. Warnement, 3rd Dist. No. 1-06-03, 2006-Ohio-2797, 2006 WL 1519921, citing Lorain Natl Bank v. Saratoga Apts. (1989), 61 Ohio App.3d 127, 572 N.E.2d 198.

{¶ 9} A grant of summary judgment will be affirmed only when the requirements of Civ.R. 56(C) are met. This requires the moving party to establish (1) that there are no genuine issues of material fact, (2) that the moving party is entitled to judgment as a matter of law, and (3) that reasonable minds can come to but one conclusion and that conclusion is adverse to the nonmoving party, who is entitled to have the evidence construed most strongly in his favor. Civ.R. 56(C); see Horton v. Harwich Chem. Corp. (1995), 73 Ohio St.3d 679, 653 N.E.2d 1196, paragraph three of the syllabus. Additionally, Civ.R. 56(C) mandates that summary judgment shall be rendered if the pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

{¶ 10} In ruling on a summary-judgment motion, a court is not permitted to weigh evidence or choose among reasonable inferences; rather, the court must evaluate evidence, taking all permissible inferences and resolving questions of credibility in favor of the nonmoving party. Jacobs v. Racevskis (1995), 105 Ohio App.3d 1, 7, 663 N.E.2d 653.

{¶ 11} In the sole issue on appeal, Melco argues that the trial court incorrectly applied the law to the facts of this case when it granted Buck's motion for summary judgment. Specifically, Melco asserts that Buck's injuries did not occur the course of and "arising out of his employment with Melco. R.C. 4123.01(C) defines a compensable injury under the Worker's Compensation Act as the following:

"Injury" includes any injury, whether caused by external accidental means or accidental in character and result, received in the course of, and arising out of, the injured employee's employment.

{¶ 12} In order to participate in the state worker's compensation fund, the employee must prove that the injury occurred while "in the course of and "arising out of the injured employee's employment. Bralley v. Daugherty (1980), 61

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Ohio St.2d 302, 303, 15 O.O.3d 359, 401 N.E.2d 448. These two prongs are conjunctive, requiring both to be satisfied before compensation is allowed. Fisher v. Mayfield (1990), 49 Ohio St.3d 275, 277, 551 N.E.2d 1271. In applying this test, the primary inquiry is "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." Bralley, 61 Ohio St.2d at 303, 15 O.O.3d 359, 401 N.E.2d 448. Moreover, as a general rule, the worker's compensation statute must be liberally construed in favor of the employee. R.C. 4123.95; Fisher, 49 Ohio St.3d at 278, 551 N.E.2d 1271.

{¶ 13} To facilitate an analysis of the first prong, the Supreme Court of Ohio summarized "in the course of employment in the following manner:

The phrase "in the course of employment" limits compensable injuries to those sustained by an employee while performing a required duty in the employer's service. "To be entitled to workmen's compensation, a workman need not necessarily be injured in the actual performance of work for his employer." Sebek v. Cleveland Graphite Bronze Co. (1947), 148 Ohio St. 693, 36 0.0. 282, 76 N.E.2d 892, paragraph three of the syllabus. An injury is compensable if it is sustained by an employee while that employee engages in activity that is consistent with the contract for hire and logically related to the employer's business.

(Citations omitted.) Ruckman v. Cubby Drilling, Inc. (1998), 81 Ohio St.3d 117, 120, 689 N.E.2d 917.

{¶ 14} An assessment of this prong requires a consideration of factors such as "time, place, and circumstances" of the injury to determine the existence of a nexus between the employment and the activi ty causing the injury. Fisher, 49 Ohio St.3d at 277, 551 N.E.2d 1271.

{¶ 15} The second prong, "arising out of," contemplates a determination as to whether a sufficient causal connection between the injury and the employment exists to warrant compensation. Id. The analysis under this prong requires a totality-of-the-circumstances review of the incident. The Supreme Court of Ohio put forth a framework of three basic factors to assist a court in determining whether an injury arose out of the employee's employment:

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.

Lord v. Dougherty (1981), 66 Ohio St.2d 441, 444, 20 O.O.3d 376, 423 N.E.2d 96. Because worker's compensation cases are intensely fact specific, a flexible and analytically sound approach is preferable to rigid rules that can lead to unsound and unfair results. Fisher, 49 Ohio St.3d at 280, 551 N.E.2d 1271.

{¶ 16} In applying the above two-pronged test to the instant case, Melco, in its brief and in oral argument, urges this court to find that Buck was not engaged in an activity required by his employment and did not serve any benefit to Melco because the injury occurred more than an hour prior to the scheduled commencement of Buck's workday.

{¶ 17} Based on the parties' stipulation and their respective motions for summary judgment with attached exhibits, the following facts emerge...