[Cite as Franklin v. BHC Servs., Inc., 2017-Ohio-655.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 104695 

PAMELA Q. FRANKLIN

PLAINTIFF-APPELLANT 

vs.

BHC SERVICES, INC., ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT:

REVERSED AND REMANDED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-15-849985 

BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Laster Mays, J. 

RELEASED AND JOURNALIZED: February 23, 2017
ATTORNEY FOR APPELLANT

Mitchell A. Stern 

27730 Euclid Avenue 

Euclid, Ohio 44132 

ATTORNEYS FOR APPELLEES

Michael J. Reidy 

Nicholas W. Lanphear 

Ross, Brittain & Schonberg Co., L.P.A. 

6480 Rockside Woods Boulevard, South, Suite 350 

Cleveland, Ohio 44131 

Bureau of Workers’ Compensation

Michael DeWine 

Ohio Attorney General 

Steven K. Aronoff 

Assistant Attorney General 

615 West Superior Avenue, 11th Floor 

Cleveland, Ohio 44113 
PATRICIA A. BLACKMON, J.: 

{¶1} Plaintiff Pamela Franklin (“Franklin”) appeals from the order of the trial 

court awarding summary judgment to defendant BHC Services, Inc. (“BHC”) in 

Franklin’s action for workers’ compensation benefits for injuries sustained en route to a 

home health aide assignment. Franklin assigns the following error for our review: 

The trial court erred by granting [Franklin’s] motion for summary judgment 

by finding that her injuries did not arise out of her employment and the 

coming-and-going rule bars her claim. 

{¶2} Having reviewed the record and pertinent law, we reverse the trial court’s 

decision and remand for further proceedings consistent with this opinion. The apposite 

facts follow. 

{¶3} On June 21, 2002, BHC hired Franklin as a home health aide. The duties 

of home health aides require them to travel to the homes of various clients and assist the 

clients with hygiene, housekeeping, and meal preparation. All work is performed at the 

home of the client and BHC does not provide the aides with an office. BHC pays home 

health aides only for the work performed after reaching the client’s home. The aides’ 

work schedules may require taking care of multiple clients in a single day. 

{¶4} BHC requires the aides “to provide their own transportation to and from 

patient houses.” BHC does not pay for travel time, but does reimburse “[e]mployees 

that drive for company purposes” for use of “their personal vehicle during company 

business.” In relevant part, the reimbursement policy states: 
1. Direct Care Staff are required to provide their own transportation to 

and from patient homes, and are informed of this requirement during the 

interview process, and again during orientation. 

* * * 

3. Employees that drive on company time must adhere to the following 

requirements: 

c. While on company business, employees may only carry passengers in 

the vehicle who are also on business with them. No friends, relatives or 

children can be in the vehicle while driving on company business — no 

exceptions. 

* * * 

5. * * * The following conditions apply to mileage reimbursement: 

a. Mileage reimbursement is only calculated from the employee’s first 

visit to the last visit of the day. 

b. Transportation to and from work is consider[ed] a work commute and 

therefore not considered work time * * *. 

{¶5} On January 23, 2014, BHC scheduled Franklin to work for two different 

clients, one of whom lives “between East 89th St. and East 93rd Street,”and the other 

lives in Cleveland Heights. Franklin was required to work for the first client from 9:00 

a.m. until noon, and the second client from 1:30 p.m. until 3:30 p.m. Franklin reported 

to the home of the first client and worked for three hours, billing the client 

until noon. At approximately 12:11 p.m., she was involved in a motor vehicle accident 

at the intersection of East 105th Street and Carnegie Avenue, and sustained injuries to her 

neck and back. Franklin explained that she was a passenger in her friend’s car and that 

her friend was driving her to work at the second client’s home. 
{¶6} Franklin filed a claim for workers’ compensation. On April 20, 2015, the 

District Hearing Officer of the Industrial Commission denied the claim, concluding: 

the Claimant’s motor vehicle accident did not occur in the course of her 

employment. The District Hearing Officer finds that the Claimant was a 

fixed-situs employee while working at a client’s house. Therefore, travel 

between homes is not a part of her employment. 

{¶7} Franklin filed an administrative appeal to the Industrial Commission. 

Franklin’s claim was disallowed on June 4, 2015, after the hearing officer likewise 

concluded that Franklin was a fixed-situs employee while working at a client’s house, and 

that travel between homes is not a part of her employment. The Industrial Commission 

denied a further appeal on June 19, 2015. 

{¶8} On August 20, 2015, Franklin filed a notice of appeal and complaint for 

workers’ compensation with the court of common pleas. BHC filed a motion for 

summary judgment, arguing that Franklin is a fixed-situs employee because her job duties 

occur at the home of the individual clients. BHC further argued that recovery is barred 

under the coming-and-going rule that bars recovery for fixed-situs employees who are 

injured while traveling to or from the place of employment. In opposition, Franklin 

argued that her injuries occurred in the course of and arising out of her employment. 

She also argued that she was entitled to compensation under “exceptions to the 

coming-and-going rule” because she was traveling under the direction of her employer, 

and in furtherance of her employer’s interests at the time of the collision. 

{¶9} On June 13, 2016, the trial court granted BHC’s motion for summary 

judgment and concluded: 
As a home health aide, Plaintiff is a fixed-situs employee. Her injury did 

not arise out of her employment, and the coming-and-going rule bars her 

claim. No exceptions apply. 

Summary Judgment

{¶10} This court reviews an appeal from summary judgment under a de novo 

standard. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 1996-Ohio-336, 671 

N.E.2d 241. Pursuant to Civ.R. 56(C), summary judgment is appropriate when (1) there 

is no genuine issue of material fact, (2) the moving party is entitled to judgment as a 

matter of law, and (3) reasonable minds can come to but one conclusion and that 

conclusion is adverse to the nonmoving party, said party being entitled to have the 

evidence construed most strongly in his favor. Horton v. Harwick Chem. Corp., 73 Ohio 

St.3d 679, 1995-Ohio-286, 653 N.E.2d 1196, paragraph three of the syllabus; Zivich v. 

Mentor Soccer Club, 82 Ohio St.3d 367, 1998-Ohio-389, 696 N.E.2d 201. The party 

moving for summary judgment bears the burden of showing that there is no genuine issue 

of material fact and that it is entitled to judgment as a matter of law. Dresher v. Burt, 75 

Ohio St.3d 280, 292-293, 1996-Ohio-107, 662 N.E.2d 264. See generally Gullie v. 

Cuyahoga Cty., 8th Dist. Cuyahoga No. 100927, 2014-Ohio-4383 (applying this analysis 

to workers’ compensation appeals). 

Workers’ Compensation

{¶11} In order to be entitled to receive workers’ compensation benefits, the 

worker must demonstrate both that: (1) the injury occurred both “in the course of 

employment”; and (2) the injury “arises out of that employment.” Ruckman v. Cubby 
Drilling, Inc., 81 Ohio St.3d 117, 121, 1998-Ohio-455, 689 N.E.2d 917, citing Fisher v. 

Mayfield, 49 Ohio St.3d 275, 277, 551 N.E.2d 1271 (1990). The workers’ compensation 

statutes are to be liberally construed but both parts of the test must be met in order to 

award benefits. Id. at 277-278. 

{¶12} In Fisher, the court explained that the “in the course of” prong of the test 

refers to the time, place, and circumstances of the injury, and limits compensation to 

injuries received while the employee was engaged in a duty required by the employer. 

Id. at 277. The “arising out of” prong of the test employs a totality-of-circumstances 

analysis in order to determine whether a causal connection exists between an employee’s 

injury and the employment. Id. Such circumstances 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 

injured employee’s presence at the scene of the accident.” Lord v. Daugherty, 66 Ohio 

St.2d 441, 423 N.E.2d 96 (1981), syllabus. 

{¶13} In this matter, Franklin argues that her injuries were sustained in the 

course of and arising out of her employment, and that she is entitled to workers’ 

compensation under exceptions to the coming-and-going rule. BHC maintains that 

Franklin is a fixed-situs employee, and that her injuries are not compensable under the 

coming-and-going rule. 

Coming-and-Going Rule

{¶14} “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.” Ruckman, 81 Ohio St.3d at 119, quoting MTD 

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

{¶15} The coming-and-going rule only applies to fixed-situs employees. 

Ruckman at 119. In determining whether an employee is a fixed-situs employee, the 

focus is on “whether the employee commences his substantial employment duties only 

after arriving at a specific and identifiable work place designated by his employer.” 

Ruckman at 121. In concluding that drilling site riggers who were required to travel to a 

different work site on a daily basis were fixed-situs employees, the Ruckman court 

explained: 

The focus remains the same even though the employee may be reassigned to 

a different work place monthly, weekly, or even daily. Despite periodic 

relocation of job sites, each particular job site may constitute a fixed place 

of employment. 

Id. at 120. 

{¶16} The Ruckman court noted that in the normal context, a fixed-situs 

employee’s commute to a work site bears no meaningful relationship to his employment 

and serves no purpose of the employer’s business, so the requisite causal connection 

between the injury and the employment does not exist. Id. at 119-121, citing MTD 

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

Home Health Aides

{¶17} BHC notes that Ohio courts have routinely held that home health 
aides and nurses are fixed-situs employees, even though they travel to the homes of 

individual clients throughout the day, because their substantial job duties are performed at 

the homes of the individual clients. See, e.g., Moss v. Conrad, 157 Ohio App.3d 47, 

2004-Ohio-2065, 809 N.E.2d 36, ¶ 18 (4th Dist.) (concluding that home health aide was a 

fixed-situs employee and that recovery was barred by the coming-and-going rule where 

she worked for the same client for five months); Gilham v. Cambridge Home Health 

Care, Inc., 5th Dist. Stark No. 2008 CA 00211, 2009-Ohio-2842 (concluding that home 

health aide was a fixed-situs employee and that recovery was barred by the 

coming-and-going rule where employee was involved in a collision while en route to her 

second client, but was not compensated or reimbursed for travel); Crockett v. HCR 

Manorcare, Inc., 4th Dist. Scioto No 03CA2919, 2004-Ohio-3533 (concluding that home 

health aide was a fixed-situs employee and that recovery was barred by the 

coming-and-going rule where employee was involved in a collision while en route to her 

second client, but was not compensated or reimbursed for travel); Mitchell v. Cambridge 

Home Health Care, Inc., 9th Dist. Summit No. 24163, 2008-Ohio-4558 (concluding that 

home health aide was a fixed-situs employee and that recovery was barred by the 

coming-and-going rule where employee completed work and was injured while exiting 

the client’s apartment building). 

{¶18} We note, however, that other Ohio courts have reached the opposite 

conclusion and ruled that home health aides are not fixed-situs employees. See, e.g., 

Johnson v. Staff Builders, 5th Dist. Licking No. 96-78, 1997 Ohio App. LEXIS 3283 
(May 22, 1997) (home health aid was not a fixed-situs employee where travel was 

essential to the performance of her duties, “[b]y definition, [aides] had to travel to the 

clients’ homes,” and employer placed restrictions on the aide’s conditions of travel); Stair 

v. Mid-Ohio Home Health Ltd., 5th Dist. Richland No. 2010-CA-0114, 2011-Ohio-2351 

(home health aide was not a fixed-situs employee and not barred from recovery by the 

coming-and-going rule where she was injured outside employer’s office after picking up 

her paycheck and receiving an additional assignment for that day); Brown v. Bernen’s 

Med., 12th Dist. Clermont No. CA97-06-058, 1997 Ohio App. LEXIS 5155 (Nov. 17, 

1997) (respiratory therapist who was in a collision while traveling to second client of the 

day was entitled to workers’ compensation because it was “undisputed that a substantial 

part of Brown’s job with Bernen required that she travel to patients’ homes” and 

“reasonable minds could only find that Brown’s injuries were sustained in the “course of 

her employment.”). 

{¶19} Other courts have concluded that the issue presents a jury question. See 

Hampton v. Trimble, 101 Ohio App.3d 282, 655 N.E.2d 432 (2d Dist.1995), (concluding 

that a jury question was presented as to whether the home health aide had a “semi-fixed” 

job site and sustained injury while on her way home from a visit to a patient, where aide 

had a brief conversation with the patient while driving, then told the patient she would 

call her back when she got home.). 

{¶20} As to case law from the Eighth District Court of Appeals, this court has 

held that “[t]he determination of whether one is a fixed-situs or nonfixed-situs employee 
must be made in light of the overall employment duties, not from an overly constrained 

examination of the activities on one day when an accident happens to occur.” Gullie, 

2014-Ohio-4383, ¶ 22, quoting Klamert v. Cleveland, 186 Ohio App.3d 268, 

2010-Ohio-443, 927 N.E.2d 618, ¶ 13 (8th Dist.). Moreover, in Jones v. Multicare 

Health & Edn. Servs., 8th Dist. Cuyahoga No. 98899, 2013-Ohio-701, this court 

considered a home health worker’s claim for workers’ compensation where he dropped 

off client’s prescription then went to lunch, and was injured in a collision while en route 

to pick up prescription. This court observed that the home health care aide’s employer 

“never established, let alone argued, that [employee] was a fixed-situs employee.” This 

court could not “say that [the aide] was off on a frolic as a matter of law.” Id. at ¶ 20. 

This court also held that “reasonable minds could differ in determining whether a 

sufficient causal connection exists between [his] injury and employment[.]” Id. at ¶ 27. 

{¶21} Conversely, this court reached the opposite conclusion where the facts 

clearly demonstrated that the home health aide was a fixed-situs employee. See Bodzin 

v. Martin, 8th Dist. Cuyahoga No. 84066, 2004-Ohio-5390. In Bodzin, the aide had an 

assigned office at the Cleveland Clinic and generally drove to her office before seeing any 

patients, and again at the end of the day. This court held that recovery was barred by the 

coming-and-going rule where the aide sustained injuries in an accident that occurred 

while she was driving to her office to drop off payroll documentation before going out of 

town. 

Friebel v. Visiting Nurses Association of Mid-Ohio 
{¶22} In Friebel v. Visiting Nurse Assn. of Mid-Ohio, 142 Ohio St.3d 425, 

2014-Ohio-4531, 32 N.E.3d 413, the Ohio Supreme Court recently considered a home 

health care aide’s workers’ compensation claim for injuries that occurred during a 

commute. In that case, the worker was paid for travel time and mileage to her first 

patient of the day, the travel during the day, and travel home. Friebel transported her 

children with her as she drove to her first patient, and planned to drop the children off at a 

mall that was on the way. Before reaching the mall, Friebel’s car was struck from 

behind and she sustained injuries. The Ohio Supreme Court held that Friebel had 

improperly been given the benefit of the “dual intent doctrine,” and that “benefits are only 

available for an injury that occurs in the course of and arising out of 

employment.” Id. at ¶ 28. However, the court held that more than one reasonable 

inference could be drawn from the record and that the material facts were in dispute, so 

the court remanded the matter for trial. 

{¶23} In undertaking its analysis, the court explained: 

Because workers’ compensation cases are fact specific, no one factor is 

controlling and “[n]o one test or analysis can be said to apply to each and 

every factual possibility.” Fisher [v. Mayfield,] 49 Ohio St.3d [275,] at 280, 

551 N.E.2d 1271. The overarching consideration is that the statute must 

be accorded a liberal construction in favor of awarding benefits. R.C. 

4123.95[.]; Fisher at 278. 

Id. at ¶ 18. 

{¶24} The court then stated: 

[T]here remain questions of material fact in general dispute: Was Friebel 

a fixed-situs employee? Was she on a personal errand at the time of 

injury? Was she traveling her normal route to this patient’s home? As is 
evident from the procedural ping-pong this case has endured, more than one 

reasonable inference can be drawn from the record. Because material 

facts are in genuine dispute, the matter may not be disposed of at the 

summary-judgment stage. Civ.R. 56; See Jackson v. Kings Island, 58 

Ohio St.2d 357, 360, 390 N.E.2d 810 (1979) (“Summary judgment is not 

appropriate where the facts, which must be viewed in a light most favorable 

to the party opposing the motion * * * are subject to reasonable dispute.”) 

Thus, the merits of the claim must be decided at trial. 

Id. at ¶ 33.1

 

{¶25} In this matter, we also conclude that there are genuine issues of material 

fact as to whether Franklin is a fixed-situs employee. Although she was not paid for 

travel time, her travel was subject to reimbursement, and was also governed by conditions 

imposed by BHC. In addition, Franklin had no office at BHC, travel is an essential 

feature of her job, and she was assigned to see more than one client on the date of her 

injury. Further, we conclude that there are genuine issues of material fact as to whether 

the injury occurred in the course of Franklin’s employment, since it occurred minutes 

after she left the first client’s home, and while en route to the second client, a duty 

required by the employer. Additionally, there are genuine issues of material fact as to 

whether the accident arose out of Franklin’s employment, in terms of the proximity of 

the scene of the accident to the clients’ homes, and the benefit the employer received 

from the injured employee’s presence there. 

Exceptions to the Coming-and-Going Rule

 1

This decision is consistent with decisions reached in other jurisdictions that recognize the 

peripatetic nature of home health care because travel is an integral part of such employment. See, 

e.g., Dow v. Intercity Homemaker Serv., 3 Mass Workers’ Comp. Rep. 136 (1989). 
{¶26} The Ruckman court also recognized several exceptions to the fixed-situs 

employee coming-and-going rule including instances where: (1) the “totality of the 

circumstances” surrounding the accident creates a causal connection between the injury 

and employment; (2) the injury occurred within the “zone of employment”; and (3) the 

injury was sustained because of a “special hazard” created by the employment that is 

distinctive in nature or quantitatively greater than the risk common to the public. 

Ruckman, 81 Ohio St.3d at 123, citing MTD Prods., 61 Ohio St.3d at 68. 

{¶27} In Kershner v. High Point Home Health, Ltd., 2d Dist. Miami No. 

2012-CA-26, 2013-Ohio-1370, the court held that the trial court erred in awarding the 

employer summary judgment since there were genuine issues of material fact as to 

whether home health aide’s injuries met the totality of the circumstances exception to the 

coming-and-going rule. In that case, the home health care aide, who did not dispute that 

she was a fixed-situs employee, was injured as she left the client’s home and walked to 

her car. The trial court awarded summary judgment to the employer under the 

coming-and-going rule. The appellate court proceeded “under the assumption that 

[Kershner] is a fixed-situs employee,” but concluded that there were genuine issues of 

material fact as to whether she was entitled to recovery under the totality of the 

circumstances exception to the coming-and-going rule since Kershner was required to call 

her employer after leaving the client’s home and she was frequently given other 

assignments during such calls. 

{¶28} Likewise, in this matter, we conclude that there are significant genuine 
issues of material fact and we cannot conclude that the coming-and-going rule bars 

Franklin’s recovery herein. It is unclear who owned the car, whether Franklin was 

proceeding directly to the second patient, the proximity of the accident to the second 

patient, whether the travel was logically related to the employer’s business, whether 

Franklin was engaged in the promotion and furtherance of their employer’s business, and 

the benefit the employer received from her presence at the scene of the accident. 

{¶29} In accordance with all of the foregoing, we conclude that the trial court 

erred in concluding as a matter of law that Franklin is “a fixed-situs employee, [her] 

injury did not arise out of her employment, and the coming-and- going rule bars her claim 

[and no] exceptions apply.” 

{¶30} Judgment is reversed and matter is remanded for further proceedings 

consistent with this opinion. 

It is ordered that appellant recover of appellee costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 
the Rules of Appellate Procedure. 

 

PATRICIA ANN BLACKMON, JUDGE 

EILEEN T. GALLAGHER, P.J., and 

ANITA LASTER MAYS, J., CONCUR