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Durbin v. Ohio Bur. of Workers' Comp.6/26/1996
GORMAN, Judge.
Plaintiff-appellant Darrell Durbin appeals from the entry of summary judgment by the Hamilton County Court of Common Pleas, which dismissed his complaint for workers' compensation benefits for injuries sustained in an automobile accident on December 18, 1992. In a single assignment of error, Durbin contends that the trial court erred in dismissing his claim, because he was acting in the course of his employment when responding to an electronic page from his employer, defendant-appellee American Sentry Protection Service. He asserts that he sustained injuries that arose from his employment when his vehicle was struck from behind while exiting the highway to answer a page.
The unrebutted evidence adduced from the pleadings and Durbin's deposition and subsequent affidavit reflects that Durbin was employed by American Sentry as a security guard. In September 1992, Durbin was promoted to sergeant and was assigned to the "R & R reserve team." As an R & R team sergeant, Durbisdid not have a fixed, permanent assignment or job location. He was on call for periods each day, seven days per week, to fill various shifts and assignments which became open due to sickness or emergencies at various work sites, including retail businesses and commercial properties. Durbin received notice of assignments from an electronic pager supplied by his employer. Because of the inconvenience imposed by his participation in the R & R team, Durbin was paid at a higher hourly rate than security guards assigned regular shifts.
Durbin did not have a company vehicle. He was responsible for his own transportation to and from the different job sites. He was not compensated for the time he spent travelling to and from a job site, except when travelling directly from one work site to another. He was not reimbursed for his travel expenses, although if he had been able to answer the December 18, 1992 page at a public pay telephone, he would have been reimbursed for the cost of the call.
On December 18, 1992, Durbin was notified by telephone earlier in the day that he would work a shift at an as yet undetermined location that evening. By telephone, Durbin requested and received permission to take his friend's daughter to a location in Indiana that was still within paging range. On the return trip, at approximately 5:00 p.m., while travelling east on I-74, Durbin received a page from his employer. He passed several exits on the highway. He testified that, to answer the page, he exited at Colerain Avenue because he knew the location of a pay telephone at that exit. While stopped in traffic, his vehicle was struck in the rear by another automobile.
Thereafter, Durbin sought payment of compensation and medical benefits from the Bureau of Workers' Compensation. A district hearing officer approved Durbin's claims for cervical strain, lumbar strain, and left ankle strain. Subsequent review in the Industrial Commission resulted in a denial of the claims. Durbin filed a notice of appeal and brought suit in the court of common pleas.
Appellees moved for summary judgment on the complaint. Relying upon the transcript of Durbin's deposition as the evidentiary basis of their motions, they claimed that no genuine issue of material fact remained to be determined and that they were entitled to judgment as a matter of law, as Durbin did not receive his injuries in the course of, and arising out of, his employment. Durbin, too, moved for summary judgment, attaching his affidavit in support.
The trial court never formally ruled on Durbin's motion for summary judgment. It did, however, dismiss the case after granting appellees' motio
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