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Court of Appeals Finds Home Health Nurse’ Claim Not Barred by Coming and Going Rules

The complexity of the “coming and going” rule has vexed Ohio courts for years.  Generally, fixed situs employees are not entitled to participate in the Workers’ Compensation Law when they are injured traveling to and from their place of employment.  The coming and going rule applies only to fixed-situs employees.  Some Ohio courts have found that home health aides and nurses are fixed-situs employees, and consequently, travel to and from clients’ homes are covered by the coming and going rule, while others have not.  As a general rule, the application of the coming and going rule is not static and there are several exceptions.

In Franklin v. BHC Services, 2017-Ohio-655, the 8th District Court of Appeals found the workers’ compensation claim of a home health nurse injured in a car accident while traveling to a clients’ home was not barred by the coming and going rule.  On the date of injury, the claimant was required to work for her first client from 9:00 a.m. until and, and the second client from 1:30 p.m. until 3:30 p.m.  The employer only paid the claimant for her work at the client sites, an under its reimbursement policy, did not consider transportation to and from the client sites to be work time.  The claimant sustained injuries in a motor vehicle accident while traveling as a passenger from her first appointment to the second.  District and staff hearing officers disallowed her claim under the coming and going rule.  The claimant appealed to the common pleas court.  The trial court granted summary judgment, on the ground the claim was barred under the coming and going rule and the claimant appealed to the court of appeals.

The court of appeals, however, reversed the trial court, finding there was a genuine issue of material fact as to whether the claimant was a fixed situs employee.  The court noted that travel was an essential feature of the claimant’s job, and while her travel time went unpaid, she did receive reimbursement for travel based on conditions imposed by the employer.  The court also found there was a question of fact as to whether the injuries sustained by the claimant arose out of employment under the “totality of the circumstances” test, which examines, among other things, the proximity of the scene of the accident to work, the employer’s control over the scene of the accident, the benefit to the employer received from the claimant’s presence at the scene of the accident.

The court’s decision demonstrates the fact specific nature of the application of the coming and going rule.  Employers should be mindful that barring claims under this rule is never guaranteed.

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