LLU) 31n the ^&upreme Court of Yjio. MAY 0120t3. ci_f.nk OF COURT Sl.lPREiViE COURT OF OHIO. Case No EDWIN LUCIANO, NCC SOLUTIONS, INC.

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1 ^ 31n the ^&upreme Court of Yjio EDWIN LUCIANO, V. Plaintiff-Appellant, Case No On Appeal from the Cuyahoga County Court of Appeals, Eighth Appellate District, NCC SOLUTIONS, INC., Defendant-Appellee, Court of Appeals Case No. CA and ADMINISTRATOR, OHIO BUREAU OF WORKERS' COMPENSATION, Defendant-Appellee. MEMORANDUM IN OPPOSITION TO JURISDICTION OF APPELLEE-ADMINISTRATOR, OHIO BUREAU OF WORKERS' COMPENSATION GREGG A. AUSTIN ( ) 614 W. Superior Ave., Suite 650 Cleveland, OH (216) (216) fax gre ggaaustingmsn. com Counsel for Appellant, Edwin Luciano LLU) MICHAEL DEWINE ( ) Ohio Attorney General BRIAN R. HONEN ( ) Assistant Attorney General Workers' Compensation Section 20 W. Federal St., 3rd Floor Cleveland, Ohio (330) (866) fax Counsel for Appellee, Administrator, Ohio Bureau of Workers' Compensation MAY 0120t3 ci_f.nk OF COURT Sl.lPREiViE COURT OF OHIO

2 JOSEPH N. GROSS ( ) BENESCH, FRIEDLANDER, COPLAN & ARONOFF, LLP 200 Public Square, Suite 2300 Cleveland, OH (216) (216) fax Counsel for Appellee, NCC Solutions, Inc. ii

3 TABLE OF CONTENTS Page " INTRODUCTION """" 1 STATEMENT OF THE CASE AND FACTS...2 THIS RAISES NO CONSTITUTIONAL QUESTIONS AND IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST RESPONSE TO APPELLANT'S PROPOSITION OF LAW AND ARGUMENT CONCLUSION CERTIFICATE OF SERVICE.....8

4 INTRODUCTION This discretionary appeal case is a straightforward application of the so-called "comingand-going rule" in workers' compensation law, which states that an employee is not entitled to participate in the workers' compensation fund for injuries sustained while traveling to or from a fixed place of employment. Furthermore, it raises no new issues about that rule or its exceptions, nor any other reason for this Court to review the actions of the courts below. The Court should decline review. Specifically, Appellant, Edwin Luciano ("Luciano") seeks the right to participate in Ohio's workers' compensation fund for injuries sustained while traveling to his place of work after an extended lunch break. Luciano had a fixed place of employment. The trial court and the court of appeals found that Luciano was not entitled to participate in the fund because his claim was barred by the coming-and-going rule. Luciano is asking this Court to find that the coming-and-going rule does not apply in this case. However, the coming-and-going rule is well established under Ohio law, and it requires no review or clarification here. The courts below correctly held that the rule applies to Luciano. The Court should deny review.

5 STATEMENT OF THE CASE AND FACTS Luciano was employed as the house manager for Garfield House, which is owned and operated by Appellee, NCC Solutions, Inc. ("NCC") and located in Garfield Heights, Ohio. Luciano v. NCC Solutions, Inc., 8th Dist. No , 2013-Ohio-497, at 2. Occasionally, Luciano was required to attend a staff meeting at NCC's headquarters in North Royalton, Ohio and conduct business-related banking on NCC's behalf on his way back to Garfield House. Id. On May 6, 2009, Luciano began his workday by attending a staff meeting at NCC's headquarters in North Royalton. Id. at 3. After the meeting, Luciano traveled to the North Royalton branch of Fifth Third Bank and performed some business-related banking. Id. After completing the banking, Luciano embarked on a pre-approved, extended personal lunch break to pick up some prescriptions and visit with his father. Id. Several hours later, on the way back to Garfield House from lunch, Luciano was involved in a motor vehicle accident. Id. Luciano filed a claim with the Bureau of Workers' Compensation ("BWC"). The Industrial Commission of Ohio ("Commission") eventually denied the claim because Luciano was not in the course and scope of his employment at the time of the accident. Id. at 4. Luciano appealed the Commission's order to the Cuyahoga County Court of Common Pleas. Id. The parties to the appeal filed cross-motions for summary judgment. Id. The trial court granted the Appellees' joint motion and denied Luciano's motion. Id. Luciano appealed to the Eighth District Court of Appeals. Id. at 5. The court of appeals affirmed the trial court's decision, holding that Luciano was a fixed situs employee and his travel back to Garfield House from lunch fell under the "coming-and-going" rule. Id. at Luciano has now appealed to this Court alleging that this case "is a case of public and great general interest." 2

6 THIS RAISES NO CONSTITUTIONAL QUESTIONS AND IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST Luciano's claim fails to raise a substantial constitutional question or one of public or great general interest. He does not specifically argue that the coming-and-going rule requires clarification. Moreover, he makes no argument that the application of the facts of his case to the coming-and-going rule will affect other Ohio workers. Neither the Eighth District Court of Appeals nor the trial court denied the validity of the coming-and-going rule. Rather, both courts correctly determined that the rule applies under the facts here; i.e., Luciano was returning from a personal lunch break. Because Luciano seeks no more than a further appeal about how the coming-and-going rule governs his workers' compensation case, review in this Court is not warranted. Luciano also points to no conflict on this issue among the appellate courts. Rather, he is merely asking for re-evaluation of the facts in his specific case. In his Memorandum, Luciano alleges that the decision he is appealing is in conflict with another decision of the 8th District Court of Appeals, Jones v. Multicare Health and Educational Services, Inc., 8`h Dist. No , 2013-Ohio-701, which was released 14 days later by a separate three judge panel. However, the facts in Jones are distinguishable from the facts of the present case. Jones was a non-fixed situs employee whose job as director of nursing for Multicare Health and Educational Services required him to travel to individual clients' residences. Luciano was a fixed situs employee whose job required him to perform his duties once he arrived at Garfield House. The Eighth District reached different results in the two cases based upon well-reasoned, detailed analyses of two substantially different sets of facts. Moreover, if Luciano believes that the two 8th District decisions are in direct conflict, an en-banc review pursuant to App.R. 26(A)(2) is a more appropriate avenue. This Court has no need to grant this appeal to reiterate well-established 3

7 principles of law. Luciano simply failed to bear his burden to prove the elements necessary to show eligibility for benefits. Accordingly, Luciano's request that the Court grant his discretionary appeal should be denied. RESPONSE TO APPELLANT'S PROPOSITION OF LAW AND ARGUMENT Luciano's own propositions of law betray any wider significance to this case. He asks the Court to address whether some facts do not "preclude a determination" that a fixed-site employee "may" be engaged in work-related travel during the day. (Jur. Mem. at 8). That is not a question of wide import. He also proposes that the Court take up whether an employee may "temporarily" interrupt assigned duties, yet "reestablish eligibility" for compensation. (Id. at 11). That is not a question that requires further elaboration in this Court. Luciano also suggests that the Court decide whether "great care must be exercised" when applying a totality-of-the circumstances test. (Id. at 12). That too, fails this Court's jurisdictional threshold of matters of public or great general interest. Workers' compensation cases are, usually, very fact specific. To establish eligibility for benefits, a claimant has the burden to prove that the alleged injury was sustained "in the course of, and arising out of, the injured employee's employment." R.C (C). "In the course of' refers to the time, place and circumstances of the injury. Fisher v. Mayfield, 49 Ohio St.3d 275, 277 (1990). "Arising out of' contemplates a causal connection between the injury and the employment. Id. at 278. An employee is not entitled to participate in the Ohio Workers' Compensation Fund for injuries resulting from travel to and from a fixed place of employment unless a recognized exception applies. An employee is considered to have a fixed place of employment if he "commences his or her substantial employment duties only after arriving at a specific and identifiable work place 4

8 designated by his employer." Ruckman v. Cubby Drilling, 81 Ohio St.3d 117, 119, 689 N.E.2d 917 (1998). Luciano's official job title was manager of the Garfield House. He commenced his substantial work duties only after arriving at Garfield House. The only exception was that he occasionally had to attend a meeting at NCC Solutions' headquarters and perform some workrelated banking on his way into the office. This occasional deviation is not sufficient to classify Luciano as a non-fixed situs employee. In his Memorandum In Support of Jurisdiction, Luciano cites the case of Jones v. Multicare Health and Educational Services, Inc., 8th Dist. No , 2013-Ohio-701, to support an assertion that Luciano was, somehow, not a fixed situs employee because he occasionally attended a meeting offsite and performed banking for NCC Solutions on his way to his regular work site. However, Luciano's job description is fundamentally different from the job performed by the injured worker in the Jones case. The Claimant ("Jones") in Jones was the director of nursing for a home health agency. Id. at 2. Jones' job required him to travel to and from Clients' homes in order to provide care. In contrast, Luciano was the manager of a group home and performed his work duties on-site. Since Luciano is a fixed situs employee, the coming-andgoing rule bars him from participation in the fund unless his travel on the date of injury falls under a recognized exception to the rule. This Court has consistently recognized three exceptions to the coming-and-going rule. Injuries are compensable under the "special mission exception" when an employee is charged while on his way to or from his place of employment with some duty in connection with his employment. Stevens vs. Industrial Commission of Ohio, 145 Ohio St. 198, , 61 N.E.2d 198 (1945). The "zone of employment exception" states that injuries sustained by fixed situs employees at or near the place of employment are compensable. Conrad, Admx., v. 5

9 Youghiogheny & Ohio Coal Co., 107 Ohio St., 387, 140 N.E., 482 (1923). The "totality of the circumstances" test considers (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). No exception applies here. Luciano was injured in a motor vehicle accident while returning to work from an extended personal lunch break. He had completed his assigned work-related banking for the employer prior to embarking on this lunch break. When the accident occurred, Luciano was over nine miles away from his place of employment; traveling back to work from a purely personal activity. At the time of the accident he was not performing any work-related duties, his employer had no control over the scene of the accident and received no benefit from Luciano's presence at the scene of the accident. The Eighth District engaged in a detailed analysis of the coming-and-going rule and correctly concluded that Luciano was not eligible for workers' compensation benefits. The coming-and-going rule has been recognized in Ohio law since at least 1933 when this Court stated that "[t]he Constitution and the statutes providing for compensation from a fund created by assessments upon the industry itself contemplate only those hazards to be encountered by the employee 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, 127 Ohio St. 345 at 4 (1933). This Court later reiterated the coming-and-going rule stating "[a]s 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 6

10 because the requisite causal connection between the injury and the employment does not exist." MTD Products, Inc. v. Robatin, 61 Ohio St.3d 66, 68, 572 N.E (1991). CONCLUSION The issue raised in this case does not involve a general question of public policy; rather, this case involves two fact-driven questions: Whether Luciano was a fixed situs employee and whether his travel at the time of his injury was work related. There is no issue of broad significance in the lower courts' conclusions that, at the time of his injury, Luciano was a fixed situs employee not engaged in work-related travel. Put another way, at the time of his injury, Luciano was subject to the coming-and-going rule and not covered by its recognized exceptions. The law is well established that he is not entitled to participate in the workers' compensation fund. Therefore, this Court should decline further review in this case. Respectfully submitted, MICHAEL DEWINE ( ) Ohio Attorney General BRIAN R. EN 84880) Assistant Attorney General Workers' Compensation Section 20 W. Federal St., 3d Floor Cleveland, Ohio fax brian.honen@ohioattorneygeneral.gov Counsel for Appellee, Administrator, Ohio Bureau of Workers' Compensation 7

11 Via CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was served on May 1, 2013, to: GREGG A. AUSTIN 614 W. Superior Ave., Suite 650 Cleveland, OH greggaaustingmsn. com Counsel for Appellant, Edwin Luciano JOSEPH N. GROSS BENESCH, FRIEDLANDER, COPLAN & ARONOFF, LLP 200 Public Square, Suite 2300 Cleveland, OH jgrosskbeneschlaw.com Counsel for Appellee, NCC Solutions, Inc..^- ^ /^;Brian R. Hicl'nen Assistant Attorney General