I'm Dual Purposing!

I'm in Austin, TX, for the next couple of days.

My Aunt Gail died late last week after a protracted fight with cancer, so the extended family is here to both commiserate and celebrate - last night we drank some wine, ate some pasta, and did lots of hugging.

Today we'll attend services, probably shed some tears, and then drink more wine, eat more pasta, and do more hugging.

It's all so Italian...

In between the family activities I'll be meeting with some Texas workers' compensation industry people - Austin after all is headquarters to the state's Division of Workers' Compensation.

Which brings up the dual purpose doctrine - if I were to get injured or succumb to a disease while in Austin, there's a chance it could be "industrial" and covered by workers' compensation, though frankly I'm not sure I would want that to occur since I have good general health insurance and am largely in control of my own salary...

The Ohio Supreme Court yesterday flat out said that doctrine has no place in that state's workers' compensation system.

This is kind of big news in Ohio - while the court had never explicitly rejected the doctrine, it had never embraced it either.

The closest the Ohio Supreme Court ever came to addressing the dual-purpose was in a 1951 case called Cardwell v. Industrial Commission.

What if this were ME on the way to the airport yesterday?

The worker in that case was hit by a train while heading back to work, after running a personal errand. Ohio's 2nd District Court of Appeal had found the accident to be compensable, relying on the dual-purpose doctrine in reaching that conclusion.

The Ohio Supreme Court reversed the 2nd DCA, saying there was no causal relationship between the worker's job and the accident.

Last year, the 5th District Court of Appeals ruled in Friebel v. Visiting Nurse Association of Mid Ohio that because the injured worker had "dual intent" when the accident occurred that it was covered by workers' compensation.

Tamara Friebel, a home health care nurse, regularly used her car to drive from her home to see patients. She was paid for her mileage and her time, including transportation time, when she handled calls on weekends.

On Saturday, Jan. 22, 2011, Friebel promised her kids she'd drop them off at the Richland Mall before going to see her first patient of the day. The mall was on the way to the patient's house anyway.

While Friebel's car was stopped at a traffic light before the mall's entrance, another vehicle struck it from behind.

Friebel filed a workers' compensation claim based on her injuries from this accident. Her employer, the Visiting Nurse Association of Mid-Ohio, disputed her claim on the basis that Friebel was outside the scope of her employment when the car accident occurred.

An administrator for the Ohio Bureau of Workers' Compensation allowed Friebel's claim for a neck sprain. VNA appealed, and a district hearing officer for the Industrial Commission vacated the administrator's decision on the basis that Friebel had not yet begun her employment duties at the patient's house when she was injured.

A staff hearing officer then vacated that ruling and allowed Friebel's claim since she was paid both mileage and for her travel time from her home to the first patient's home.

After the Industrial Commission declined VNA's request for further reconsideration, VNA sought judicial review in the Richland County Court of Common Pleas.

A trial judge granted summary judgment in favor of VNA.

The judge reasoned that since there was no dispute that Friebel was on a personal errand at the time she was injured that there was no industrial causation.

The judge also opined that it was "immaterial" that Friebel was paid for travel time and mileage on the weekends because at the time of the injury, Friebel was traveling to the mall and not to work.

A divided 5th DCA panel then reversed the judge, the majority finding that Friebel had "dual-intentions" when she left home on the day of her accident.

Since Friebel had not yet made the turn into the mall, which would have deviated from the route to her patient's home before her accident, it could not be said she was on a personal errand when the crash occurred.

VNA petitioned the Supreme Court for review last December, and yesterday the court ruled in favor of VNA.

Though a strong dissent argued that the 5th DCA made a very basic AOE/COE analysis, the majority was worried that the lower court's assertion of a "dual intent" was changing the law in Ohio.

Justices Judith Ann Lanzinger, Sharon L. Kennedy and Judith L. French said they thought the doctrine influenced the appellate court's analysis. Thus, they said it was appropriate for the court to provide guidance on "the correct standards for addressing similar claims."

The Supreme Court majority said it was an "impossibility" to have a "one-size-fits-all test" for when an injury is compensable, and so a test like the dual-intent or dual-purpose doctrine "does not have a place in analyzing workers' compensation claims in Ohio."

Even when work creates the necessity for travel and the travel includes a personal purpose, the majority explained, the fact remains that "workers' compensation benefits are available only for an injury that occurs in the course of and arising out of the employment."

Sigh - trim the fat off the bone: it's all about who pays...

I'm not in Ohio, and my employment contract is in California; still, I'm not worried about whether or not I would be covered by workers' compensation if I have an injury in Austin - I'm lucky to be able to have family, industry, colleagues and a job in both Texas and California even if I just happen to be living life...
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