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KATHLEEN KELLEY
vs.
TTC ILLINOIS INC.
 
Case:
MANUAL NUMBER 7218
 
Location:
THE INDUSTRIAL COMMISSION OF OHIO
 
Date:
MAY 21, 1996
 
Attorneys:
THOMPSON MEIER & DERSOM, FOR THE CLAIMANT 33 N. HIGH ST. #900 COLUMBUS, OH 43215
BUGBEE & CONKLE, FOR THE EMPLOYER NATIONAL CITY BANK BLDG 405 MADISON AVE, SUITE 1300 TOLEDO, OH 43604-1238
ROETZEL & ANDRESS 75 E. MARKET ST. AKRON, OH 44308 BWC, LAW DIRECTOR
 
Court:
MR. TRAIL, MR. GANNON
 
OPINION: FINDINGS OF FACT AND ORDER OF THE COMMISSION

THIS MATTER CAME ON FOR HEARING ON 5/15/96 ON THE EMPLOYER'S APPEAL FILED ON 6/9/94 FROM THE ORDER OF THE STAFF HEARING OFFICER DATED 3/23/94. NOTICES WERE MAILED TO THE CLAIMANT, THE EMPLOYER, THEIR RESPECTIVE REPRESENTATIVES, AND THE ADMINISTRATOR OF THE BUREAU OF WORKERS' COMPENSATION NOT LESS THAN 14 DAYS PRIOR TO THE HEARING. THE FOLLOWING WERE PRESENT FOR HEARING:

FOR THE CLAIMANT: MR. TOM THOMPSON AND CLAIMANT

FOR THE EMPLOYER: MR. DAVID MCCARTY

FOR THE COMMISSION: RACHAEL RENTAS-PILUTTI, STAFF ATTORNEY

FOR THE ADMINISTRATOR: N/A

5/15/96 - IT IS THE ORDER OF THE INDUSTRIAL COMMISSION THAT THE EMPLOYER'S APPEAL BE TAKEN UNDER ADVISEMENT FOR FURTHER REVIEW AND DISCUSSION AND AN ORDER IS TO BE PUBLISHED WITHOUT FURTHER HEARING.

5/21/96 - AFTER FURTHER REVIEW AND DISCUSSION, IT IS THE ORDER OF THE INDUSTRIAL COMMISSION THAT THE EMPLOYER'S APPEAL FILED ON 6/9/94 BE GRANTED AND THAT THE ORDER OF THE STAFF HEARING OFFICER DATED 3/23/94 BE VACATED IN ITS ENTIRETY. THEREFORE, THE C-1 APPLICATION FILED 11/8/93 IS DENIED.

IT IS THE FINDING OF THE INDUSTRIAL COMMISSION THAT THE CLAIMANT DID NOT HAVE SUFFICIENT CONTACTS IN THE STATE OF OHIO TO INVOKE THE JURISDICTION OF THE OHIO WORKERS' COMPENSATION ACT.

IN THE INSTANT CLAIM, THE INDUSTRIAL COMMISSION FINDS THAT THE CLAIMANT IS A PENNSYLVANIA RESIDENT WHO DOES NOT PAY OHIO TAXES, THAT THE EMPLOYMENT CONTRACT BETWEEN THE CLAIMANT AND EMPLOYER WAS SIGNED IN OHIO, AND THAT THE CLAIMANT WAS INJURED IN OREGON. THESE FINDINGS ARE BASED ON THE CLAIMANT'S TESTIMONY AT HEARING AS WELL AS THE C-1 APPLICATION FILED ON 11/8/93. THE INDUSTRIAL COMMISSION FURTHER FINDS THAT THE EMPLOYER'S PRINCIPAL PLACE OF BUSINESS IS ILLINOIS AND THAT THE CLAIMANT WAS SUPERVISED OUT OF CHATTANOOGA, TENNESSEE. THESE FINDINGS ARE BASED ON THE EMPLOYER'S OUT-OF-STATE-QUESTIONNAIRE AND THE AFFIDAVIT OF Y. RENEE BRASHER DATED 5/13/96. IT IS FURTHER THE FINDING OF THE INDUSTRIAL COMMISSION THAT A SIGNIFICANT PART OF THE CLAIMANT'S WORK WAS PERFORMED IN INTERSTATE COMMERCE. SPECIFICALLY, THE INDUSTRIAL COMMISSION FINDS THAT THE CLAIMANT WAS ONLY LOCATED IN OHIO, EITHER AS A POINT OF ORIGINATION OR DESTINATION, A TOTAL OF THIRTEEN TIMES IN A NINE MONTH PERIOD. THE REMAINDER OF THE TIME THE CLAIMANT PERFORMED HER WORK EXCLUSIVELY IN INTERSTATE COMMERCE. IN MAKING THESE FINDINGS, THE INDUSTRIAL COMMISSION SPECIFICALLY RELIES UPON THE CLAIMANT'S DAILY TRUCKING LOGS WHICH WERE SUBMITTED AT HEARING.

IN CONCLUSION, IT IS THE FINDING OF THE INDUSTRIAL COMMISSION THAT THE CLAIMANT'S CONTACTS WITH THE STATE OF OHIO ARE: (1) THE EMPLOYMENT CONTRACT WAS ENTERED INTO IN OHIO AND (2) SHE STOPPED IN OHIO A TOTAL OF THIRTEEN TIMES IN A NINE MONTH TIME PERIOD. THE INDUSTRIAL COMMISSION FURTHER FINDS THAT THESE CONTACTS ARE INSUFFICIENT TO VEST THE STATE OF OHIO WITH JURISDICTION OVER THIS CLAIM. ACCORDINGLY, THE INDUSTRIAL COMMISSION ORDERS THAT THE CLAIMANT'S C-1 APPLICATION BE DENIED AND THAT THE CLAIM BE DISALLOWED.

DOUGLAS R. TRAIL, CHAIRMAN

ON 5/21/96, I DISCUSSED THIS MATTER WITH MS. RENTAS-PILUTTI, INDUSTRIAL COMMISSION STAFF ATTORNEY, WHO WAS PRESENT AT THE 5/15/96 HEARING. MS. RENTAS-PILUTTI SUMMARIZED THE CLAIMANT'S TESTIMONY AND COUNSEL'S ARGUMENTS PRESENTED AT HEARING. AFTER THIS DISCUSSION AND A REVIEW OF ALL THE EVIDENCE CONTAINED WITHIN THE CLAIM FILE, I VOTE TO GRANT THE EMPLOYER'S APPEAL.

BARBARA A. KNAPIC, MEMBER

DISSENT:

I RESPECTFULLY DISSENT FROM THE MAJORITY OPINION. I WOULD DENY THE EMPLOYER'S APPEAL AND AFFIRM THE STAFF HEARING OFFICER ORDER DATED 3/23/94. THE CLAIMANT'S CONTACTS WITH THE STATE OF OHIO ARE SUFFICIENT TO INVOKE THE JURISDICTION OF OHIO'S WORKERS' COMPENSATION LAWS. THE CLAIMANT ENTERED INTO AN EMPLOYMENT CONTRACT WITH THE NAMED EMPLOYER IN THE STATE OF OHIO ON 12/2/92. AT THAT TIME, THE CLAIMANT WAS REQUIRED TO FILL OUT AN EMPLOYMENT APPLICATION, UNDERGO A PHYSICAL EXAMINATION, AND TAKE A DRUG TEST AND A ROAD TEST ALL IN THE STATE OF OHIO.

MOREOVER, THE MAJORITY OF THE CLAIMANT'S WORK WAS PERFORMED IN THE STATE OF OHIO. THE CLAIMANT TOOK HER FIRST LOAD FROM THE TERMINAL IN VANDALIA, OHIO. SHE SUBSEQUENTLY TOOK TWELVE OTHER LOADS OUT OF THIS OHIO TERMINAL. IN THE INTERIM, THE CLAIMANT WAS CONSTANTLY CROSSING THE STATE OF OHIO WHILE MAKING OTHER DELIVERIES. FINALLY, THE CLAIMANT'S LAST LOAD PRIOR TO THE DATE OF INJURY IN THIS CLAIM WAS ALSO TAKEN FROM THE OHIO TERMINAL.

THEREFORE, I WOULD FIND THAT THE CLAIMANT DID HAVE SUFFICIENT CONTACTS WITH THE STATE OF OHIO TO VEST OHIO WITH JURISDICTION TO CONSIDER THE MERITS OF THIS CLAIM. I WOULD FURTHER AFFIRM THE STAFF HEARING OFFICER ORDER ALLOWING THIS CLAIM IN ITS ENTIRETY.

PATRICK J. GANNON, MEMBER