[Cite as McMasters v. Kilbarger Constr., Inc., 2015-Ohio-4663.]

COURT OF APPEALS 

MUSKINGUM COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

SUE MCMASTERS : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Sheila G. Farmer, J. 

-vs- : 

 : 

KILBARGER CONSTRUCTION, INC. : 

 : 

 Defendant-Appellant : 

 : 

and : Case No. CT2015-0010 

 : 

ADMINISTRATOR, BUREAU OF : 

WORKERS' COMPENSATION : 

 : 

 Defendant-Appellee : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

 Pleas, Case No. CD2009-0397 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: November 6, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JAMES C. AYERS SARA L. ROSE 

165 North High Street P.O. Box 188 

Columbus, OH 43215-2402 Pickerington, OH 43147 

JOSEPH F. NAVIN For Administrator, BWC 

165 North High Street 

Columbus, OH 43215 NATALIE J. TACKETT 

 150 East Gay Street 

 22nd Floor 

 Columbus, OH 43215-3130 
Muskingum County, Case No. CT2015-0010 2 

Farmer, J. 

{¶1} Nathan Hallowell, Derek Petry, and Robert Perry all worked for appellant, 

Kilbarger Construction Company, as drilling riggers. On November 14, 2007, the three 

were driving home from work together, approximately two hours/ninety miles from the 

drilling site. The driver, Mr. Petry, fell asleep and drove off the road. Mr. Hallowell was 

killed and Mr. Petry and Mr. Perry sustained injuries. All three filed claims for workers' 

compensation. Sue McMasters, appellee herein, filed on behalf of Mr. Hallowell, as she 

is the guardian of his minor dependant. Appellant contested the claims, arguing the 

accident did not arise out of the employees' employment. By order dated March 10, 

2009, the Industrial Commission allowed appellee's claim (Claim No. 07-890684). 

{¶2} On May 18, 2009, appellant filed an appeal to the Court of Common 

Pleas.1 All parties filed motions for summary judgment. By findings and decision filed 

December 5, 2011, the trial court granted summary judgment to appellee, finding Mr. 

Hallowell was in the scope of his employment at the time of the accident. The trial court 

instructed appellee to prepare an entry in conformity with its decision. By judgment 

entry filed January 27, 2012, the trial court granted summary judgment to appellee, 

finding the accident occurred within the course and scope, and arose out of, Mr. 

Hallowell's employment with appellant. Appellant filed an appeal to this court on 

February 24, 2012 (Case No. 2012-CA-11). In an opinion filed September 21, 2012, 

this court dismissed the case for lack of a final appealable order, noting the trial court 

 

1The Industrial Commission also allowed the claims of Mr. Petry and Mr. Perry. 

Appellant appealed those cases as well. The trial court filed an order of consolidation 

on September 21, 2010. 
Muskingum County, Case No. CT2015-0010 3 

failed to rule on the issue of attorney fees and related expenses. See McMasters v. 

Kilbarger Construction, Inc., 5th Dist. Muskingum No. 2012-CA-11, 2012-Ohio-4353. 

{¶3} In a judgment entry filed February 13, 2015, the trial court awarded 

appellee's attorney the statutory maximum amount of $4,200.00 for attorney fees and 

$143.91 for litigation expenses as against appellant. In an order filed same date, the 

trial court also awarded appellee's attorney $1,650.00 as a sanction for appellant's 

frivolous discovery requests. 

{¶4} Appellant filed an appeal of the trial court's January 27, 2012 judgment 

entry and February 13, 2015 judgment entry and order, and this matter is now before 

this court for consideration. Assignments of error are as follows: 

I 

{¶5} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S SUMMARY 

JUDGMENT MOTION AND IN DENYING KILBARGER'S SUMMARY JUDGMENT 

MOTION, BECAUSE APPELLEE'S ACCIDENT DID NOT ARISE OUT OF HIS 

EMPLOYMENT." 

II 

{¶6} "THE TRIAL COURT ERRED IN GRANTING APPELLEE'S MOTION FOR 

EXPENSES AND FEES PURSUANT TO R.C. 4123.512(F)." 

III 

{¶7} "THE TRIAL COURT ERRED IN AWARDING APPELLEE SANCTIONS." 

I 

{¶8} Appellant claims the trial court erred in granting summary judgment to 

appellee. We disagree. 
Muskingum County, Case No. CT2015-0010 4 

{¶9} Summary Judgment motions are to be resolved in light of the dictates of 

Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. 

Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 1996-Ohio-211: 

Civ.R. 56(C) provides that before summary judgment may be 

granted, it must be determined that (1) no genuine issue as to any 

material fact remains to be litigated, (2) the moving party is entitled to 

judgment as a matter of law, and (3) it appears from the evidence that 

reasonable minds can come to but one conclusion, and viewing such 

evidence most strongly in favor of the nonmoving party, that conclusion is 

adverse to the party against whom the motion for summary judgment is 

made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 

628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 

Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274. 

{¶10} As an appellate court reviewing summary judgment motions, we must 

stand in the shoes of the trial court and review summary judgments on the same 

standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio 

St.3d 35 (1987). 

{¶11} R.C. 4123.01(C) defines "injury" for purposes of workers' compensation 

benefits as: "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." 
Muskingum County, Case No. CT2015-0010 5 

{¶12} Appellant argues the accident did not "arise out of" Mr. Hallowell's 

employment. Appellant argues in its brief at 8 that when a "fixed-situs employee is 

injured while commuting from work, his claim for workers' compensation benefits is 

barred by the coming-and-going rule" unless an exception applies: "based on the totality 

of the circumstances, a casual connection exists between the injury and the 

employment" and/or "the injury was caused by a 'special hazard' created by the 

employment." In its brief at 9, 11 and 12, appellant concedes Mr. Hallowell was a fixedsitus employee and the accident occurred while he was commuting home from his fixed 

work site. 

{¶13} In Ruckman v. Cubby Drilling, Inc., 81 Ohio St.3d 117, 119, 1998-Ohio455, the Supreme Court of Ohio explained the "coming-and-going rule" as follows: 

The coming-and-going rule is a tool used to determine whether an 

injury suffered by an employee in a traffic accident occurs "in the course 

of" and "arise[s] out of" the employment relationship so as to constitute a 

compensable injury under R.C. 4123.01(C). "As a general rule, an 

employee with a fixed place of employment, who is injured while traveling 

to or from his place of employment, is not entitled to participate in the 

Workers' Compensation Fund because the requisite causal connection 

between injury and the employment does not exist." MTD Products, Inc. 

v. Robatin (1991), 61 Ohio St.3d 66, 68, 572 N.E.2d 661, 663, citing 

Bralley v. Daugherty (1980), 61 Ohio St.2d 302, 15 O.O.3d 359, 401 

N.E.2d 448. The rationale supporting the coming-and-going rule is that 
Muskingum County, Case No. CT2015-0010 6 

"[t]he constitution and the statute, providing for compensation from a fund 

created by assessments upon the industry itself, contemplate only those 

hazards to be encountered by the employe[e] in the discharge of the 

duties of his employment, and do not embrace risks and hazards, such as 

those of travel to and from his place of actual employment over streets 

and highways, which are similarly encountered by the public generally." 

Indus. Comm. v. Baker (1933), 127 Ohio St. 345, 188 N.E. 560, paragraph 

four of the syllabus. 

{¶14} As explained by the Ruckman court at 121-122: " 'The "arising out of" 

element***contemplates a causal connection between the injury and the employment.' " 

{¶15} In order to analyze the facts for a causal connection, it is necessary to 

examine the applicability of the "totality of the facts and circumstances" test as set forth 

in Lord v. Daugherty, 66 Ohio St.2d 441 (1981), and/or the "special hazard or risk rule" 

enumerated in MTD Products, Inc. v. Robatin, 61 Ohio St.3d 66 (1991). 

{¶16} The "totality of the facts and circumstances" test is set forth in Lord, supra, 

at syllabus: 

Whether there is a sufficient "causal connection" between an 

employee's injury and his employment to justify the right to participate in 

the Worker's Compensation Fund depends on the totality of the facts and 

circumstances surrounding the accident, including, (1) the proximity of the 

scene of the accident to the place of employment, (2) the degree of control 
Muskingum County, Case No. CT2015-0010 7 

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. 

{¶17} The "special hazard or risk rule" is explained in MTD Products, supra, at 

68: 

More recently, in Littlefield v. Pillsbury Co., supra, [6 Ohio St.3d 389 

(1983)] we also recognized the "special hazard or risk" exception to the 

general rule. In Littlefield we held that when the employment creates a 

"special hazard," an employee is entitled to workers' compensation 

benefits if he sustains injuries because of that hazard. Furthermore, we 

held that the rule 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. Id. at syllabus. 

{¶18} As further analyzed by the Supreme Court of Ohio in Ruckman, supra, at 

124: 

Accordingly, we now expressly limit the syllabus of Littlefield to 

state a test for determining only whether a traffic injury suffered by a fixedsitus employee while coming or going from work arises out of the 
Muskingum County, Case No. CT2015-0010 8 

employment relationship. If an employee's injury occurs in the course of 

his employment, yet fails the Lord three-part test for causation, a fixedsitus employee may, nevertheless, demonstrate the required causal 

connection between employment and injury under the special hazard rule 

of causation. 

{¶19} The facts are not in dispute. Mr. Hallowell was hired by appellant to work 

on Rig No. 4 in Utica, Ohio. Schein aff. at ¶ 6; Sturm aff. at ¶ 3 and 4. Mr. Hallowell 

was part of a three-member crew. Schein aff. at ¶ 6; Sturm aff. at ¶ 3 Each crew 

member was given a "per diem" for expenses separate and apart from their hourly 

wage. Perry depo. at 33; Petry depo. at 31. The crew was hired nine days prior to the 

accident and worked on the rig in the same location, although it was anticipated that 

Rig. No. 4 would move to other sites and the crew would follow the rig. Perry depo. at 

31-32, 41; Petry depo. at 30, 36, 39; Sturm aff. at ¶ 5. The three employees, including 

Mr. Hallowell, lived some two hours/ninety miles away from the rig site. Perry depo. at 

62-63; Petry depo. at 54, 112. When the accident occurred, the employees were 

traveling home from the site after working sixteen hours. Perry depo. at 81-82; Petry 

depo. at 48-49, 130. The accident occurred approximately one and one-half hours after 

leaving the site. Perry depo. at 93. The employees were not paid for any of their time 

driving to and from the site, and their job duties did not commence until they arrived at 

the site. Perry depo. at 79; Petry depo. at 97. 

{¶20} From the facts sub judice, the totality of the circumstances test does not 

apply. 
Muskingum County, Case No. CT2015-0010 9 

{¶21} As for the special hazard or risk rule, it is conceded by the facts that "but 

for" the employment, Mr. Hallowell would not have been driving on the road at the time 

and "but for" the commute, he would not have been involved in an accident. However, 

satisfying only one prong of the Littlefield test is not sufficient. It must also be 

established that "the risk is distinctive in nature or quantitatively greater than the risk 

common to the public." MTD Products, supra.

{¶22} The analysis now is whether appellant created the "special hazard." 

Under the facts of this case, we answer in the affirmative for the following reasons. 

{¶23} Appellant hired Mr. Hallowell knowing he would have to travel from his 

home to Rig No. 4 in Utica, Ohio, or any other location where Rig No. 4 may be utilized. 

Sturm depo. at 17, 19-20, 31. In fact, Rig No. 4 was moved the day of the accident to 

another site in Utica. Perry depo. at 60-61; Petry depo. at 36. "[I]t was impossible for 

them to fix their commute in relation to these remote work sites." Ruckman at 124. The 

per diem given by appellant to each crew member was probably sufficient to pay for 

overnight housing, but it had yet to be paid. Perry depo. at 34; Petry aff. at ¶ 6. The per 

diem was insufficient to compensate them for a physical relocation to wherever Rig No. 

4 would be located. "Although the riggers worked within an area of a one-day drive, that 

area was not so limited as to bring the riggers' travel to the varying work sites in line 

with work commutes common to the public." Ruckman at 125.

{¶24} Given the facts that working at various sites necessitated travel and the 

very nature of the employment mandated lengthy travel, the crew members were not 

compensated for housing, and appellant required the crew members to work long hours 

and extras hours, we find the special hazard rule has been fulfilled as in Ruckman at 
Muskingum County, Case No. CT2015-0010 10 

125: "Here, however, the employment relationship dictates that the riggers undertake 

interstate and lengthy intrastate commutes, thereby significantly increasing their 

exposure to traffic risks associated with highway travel. Accordingly, because of the 

combination of all these factors, the riggers have established a risk quantitatively 

greater than risks common to the public." Therefore, appellee is entitled to participate in 

the workers' compensation fund. 

{¶25} Upon review, we find the trial court did not err in granting summary 

judgment to appellee. 

{¶26} Assignment of Error I is denied. 

II 

{¶27} Appellant claims the trial court erred in awarding appellee's attorney 

attorney fees and litigation expenses. We disagree. 

{¶28} R.C. 4123.512 governs workers' compensation appeals. Subsection (F) 

states: 

The cost of any legal proceedings authorized by this section, 

including an attorney's fee to the claimant's attorney to be fixed by the trial 

judge, based upon the effort expended, in the event the claimant's right to 

participate or to continue to participate in the fund is established upon the 

final determination of an appeal, shall be taxed against the employer or 

the commission if the commission or the administrator rather than the 

employer contested the right of the claimant to participate in the fund. The 

attorney's fee shall not exceed forty-two hundred dollars. 
Muskingum County, Case No. CT2015-0010 11 

{¶29} The decision to grant or deny fees under R.C. 4123.512(F) lies within the 

sound discretion of the trial court and will not be disturbed absent an abuse of 

discretion. Azbell v. Newark Group, Inc., 5th Dist. Fairfield No. 07 CA 00001, 2008-

Ohio-2639. In order to find an abuse of discretion, we must determine the trial court's 

decision was unreasonable, arbitrary or unconscionable and not merely an error of law 

or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). 

{¶30} Appellant argues it was entitled to an evidentiary hearing and challenges 

the number of hours claimed. 

{¶31} In its judgment entry filed February 13, 2015, the trial court determined the 

following: 

The Court finds that Plaintiff's attorney of record, James C. Ayers, 

has expended sufficient time and effort in preparing, attending hearings, 

attending depositions, filing memoranda and briefs, and generally 

representing his client to be entitled to the statutory maximum award of 

$4,200.00. 

The Court takes notice that, although the maximum award is 

justified by the effort expended on the McMaster's case alone, substantial 

additional effort was expended in the furtherance of both Case No. 

CD2009-0397 and Case No. CD2009-0398, joined with this case for 

purposes of a summary judgment motion. Neither client could be 

represented in a vacuum as an attorney cannot represent two clients in 
Muskingum County, Case No. CT2015-0010 12 

one proceeding without working with each client and filing required 

duplicate papers in each name. 

The Court further finds that mileage expense of $143.91 for 

Plaintiff's attorney to meet with the mother of Braxton Bailey and the 

paternal family of Braxton Bailey to be a reasonable litigation expense by 

Plaintiff's attorney to be reimbursed pursuant to R.C. 4123.512(F). 

Braxton Bailey is the dependent in this case represented by his maternal 

grandmother Sue McMasters, guardian. 

{¶32} We note appellee's attorney filed a detailed time sheet, attached to the 

June 5, 2013 motion for attorney fees, setting forth the hours expended, as well as an 

affidavit from a local attorney averring to a reasonable hourly fee. The total attorney 

fees amounted to well over the statutory maximum of $4,200.00. 

{¶33} We conclude, as did the trial court, that the extensive nature of the case, 

including some ninety docket filings, and the complexity of the issues as discussed in 

Assignment of Error I, are sufficient to support the award of attorney fees and litigation 

expenses. 

{¶34} Upon review, we find the trial court did not abuse its discretion in awarding 

appellee's attorney attorney fees and litigation expenses. 

{¶35} Assignment of Error II is denied. 

III 

{¶36} Appellant claims the trial court erred in awarding appellee's attorney 

$1,650.00 as a sanction for its frivolous discovery requests. We disagree. 
Muskingum County, Case No. CT2015-0010 13 

{¶37} R.C. 2323.51(A)(2) defines "frivolous conduct" as follows: 

(2) "Frivolous conduct" means either of the following: 

(a) Conduct of an inmate or other party to a civil action, of an 

inmate who has filed an appeal of the type described in division (A)(1)(b) 

of this section, or of the inmate's or other party's counsel of record that 

satisfies any of the following: 

(i) It obviously serves merely to harass or maliciously injure another 

party to the civil action or appeal or is for another improper purpose, 

including, but not limited to, causing unnecessary delay or a needless 

increase in the cost of litigation. 

(ii) It is not warranted under existing law, cannot be supported by a 

good faith argument for an extension, modification, or reversal of existing 

law, or cannot be supported by a good faith argument for the 

establishment of new law. 

(iii) The conduct consists of allegations or other factual contentions 

that have no evidentiary support or, if specifically so identified, are not 

likely to have evidentiary support after a reasonable opportunity for further 

investigation or discovery. 

(iv) The conduct consists of denials or factual contentions that are 

not warranted by the evidence or, if specifically so identified, are not 

reasonably based on a lack of information or belief. 
Muskingum County, Case No. CT2015-0010 14 

{¶38} "A motion for sanctions brought under R.C. 2323.51 requires a three-step 

analysis by the trial court: (1) whether the party engaged in frivolous conduct, (2) if the 

conduct was frivolous, whether any party was adversely affected by it, and (3) if an 

award is to be made, the amount of the award." Ferron v. Video Professor, Inc., 5th 

Dist. Delaware No. 08-CAE-09-0055, 2009-Ohio-3133, ¶ 44. The decision to award 

attorney fees as a sanction for frivolous conduct rests within the trial court's sound 

discretion. Burchett v. Larkin, 192 Ohio App.3d 418, 2011-Ohio-684 (4th Dist.); 

Blakemore, supra. 

{¶39} In its order filed February 13, 2015, the trial court determined certain 

discovery sought by appellant was frivolous for the following reasons: 

1) Defendant Kilbarger Construction, Inc. sought and vigorously 

pursued discovery concerning the dependency of Braxton Bailey. 

"Dependency" is a matter of "extent of disability" and cannot be appealed 

nor pursued in an R.C. 4123.512 action. State ex rel. Liposchak v. Indus. 

Comm. (2000), 90 Ohio St.3d 276. 

2) Defendant Kilbarger Construction, Inc. sought and vigorously 

pursued discovery, (most notably another attorney's complete file), from 

Plaintiff, Sue McMasters, concerning Muskingum County cases Nos. 

CC2008-0608; CC2008-0982; CC2009-0771; and CD2009-0308. Sue 

McMasters was not and is not a party to any of these cases and has no 

access to any attorney's files. 
Muskingum County, Case No. CT2015-0010 15 

The Court finds that Defendant's actions in pursuing the discovery 

so described was frivolous in fact and caused Plaintiff's attorney to expend 

unnecessary time and effort. Plaintiff's counsel has certified that he has 

expended well over five and one-half hours in responding to Defendant 

and filing responses with this Court. Plaintiff's counsel has further filed 

with this Court and (sic) affidavit from an established Muskingum County 

attorney stating that a reasonable attorney fee for an experienced workers' 

compensation attorney such as Mr. Ayers to be $300.00 per hour. 

{¶40} Despite appellant's assertion that its trial counsel admitted error in 

attempting discovery from a non-party in other cases, that legal mistake must somehow 

be compensated to an innocent party. 

{¶41} Upon review, we find the trial court did not abuse its discretion in awarding 

appellee's attorney $1,650.00 as a sanction for frivolous discovery. 

{¶42} Assignment of Error III is denied. 
Muskingum County, Case No. CT2015-0010 16 

{¶43} The judgment of the Court of Common Pleas of Muskingum County, Ohio 

is hereby affirmed. 

By Farmer, J. 

Gwin, P.J. and 

Hoffman, J. concur. 

 

 

 

 

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