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No Dual Intent Doctrine for Traveling Employees in Ohio


By Kevin Sanislo

November 4, 2014

The Ohio Supreme Court, in Friebel v. Visiting Nurse Assoc. of Mid-Ohio, Slip Opinion No. 2014-Ohio-4531, recently weighed in on the question of whether the doctrine of dual intent or dual purpose is applicable in Ohio for determining whether a claim for worker’s comp benefits is compensable for injuries sustained by a traveling employee. The Supreme Court determined that this doctrine is not applicable in Ohio to traveling employees. 

In Ohio, there are generally two different types of employees that sustain injuries while traveling – fixed situs employees or traveling employees. For employees with a fixed situs place of employment (an office building for example) injuries are generally not compensable when going to or coming from work. This is called the “coming and going” rule, and unless the injury meets one of the exceptions to the rule it is not compensable. The general exceptions are the “totality of circumstances” test, the “zone of employment” test, or the “special hazard” exception. For employees that travel regularly for work, though, it is generally held that their injuries sustained while traveling are compensable unless the employee was on a personal errand or mission. The Supreme Court in Friebel sought to lay out a more objective test on the compensability of injuries sustained by traveling employees. 

The claimant in Friebel was a home health nurse where she would provide in-home health services to clients of her employer. Her work required her to travel from patient to patient in her personal vehicle. She was compensated by her employer for travel time and mileage between her home and the patient’s homes and from patient home to patient home. On the date of her injury, the claimant was expected to travel from her home to a home of a patient. The claimant decided to transport her daughter, her son, and two family friends in her car and drop them off at a mall on her way to her first patient home of the day. Before she could turn into the mall to drop them off she was rear ended and then sought worker’s comp benefits for a cervical sprain. The claim was allowed by the Industrial Commission, so the employer appealed the matter to court. The employer was granted summary judgment by the trial court, so the claimant appealed to the Fifth District Court of Appeals. The Fifth District reversed the decision of the trial court and found the claimant dually intended on the date of the injury to travel to the mall and to the home of the patient, so she was not disqualified from receiving worker’s comp benefits. The employer appealed to the Supreme Court of Ohio and the Supreme Court accepted the case. 

The Supreme Court determined that the proper way to analyze the compensability of worker’s comp claims even for traveling employees for both personal travel and employment related travel is to determine if the injury was sustained “in the course of” and “arising out of” the employment. The Court noted that even when work creates the necessity for travel and the travel includes a personal purpose the claim is only compensable when the injury occurs in the course of and arising out of the employment. One major point the Court made was to remove the subjective intent of the travel of the claimant at the time of the injury, and make the test for compensability a more objective one. The core analysis, the Court said, is: (1) whether the time, place, and circumstance of the injury demonstrates that it occurred in the course of employment and (2) whether under the totality of the circumstances there is a sufficient causal connection between the injury and the employment to make it compensable. 

The major point to take away from this case is that the analysis of the compensability of an injury to a traveling employee is not a subjective one. The analysis is not on what the employee was “intending to do” at the time of the injury, but rather what the employee was actually doing at the time of the injury. Under the “time, place, and circumstances,” if the injury to a traveling employee was not sustained while engaging in a required employment duty or activity consistent with the contract of hire and logically related to their employment it is not compensable.  Additionally, under the “totality of circumstances,” if the injury to the traveling employee is to be compensable the location of the injury must be analyzed to 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 employee’s presence at the scene of the accident. 

If you would like a copy of the opinion, or if you have any questions related to matters of Workers’ Compensation, please feel free to contact one of our Workers’ Compensation Practice Group attorneys.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.