COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69806 JAMES KINARD : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DONCO CARRIERS, INC. : : Defendant-appellant : : DATE OF ANNOUNCEMENT OF DECISION: JULY 25, 1996 CHARACTER OF PROCEEDING: Civil appeal from Court of Common Pleas Case No. CV-262579 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: GERALD F. COOPER, ESQ. TERENCE E. COPELAND, ESQ. COOPER, SPECTOR & WEIL AMY BERMAN HAMILTON, ESQ. 801 Terminal Tower 3300 BP-America Building Cleveland, Ohio 44113-2203 200 Public Square Building Cleveland, Ohio 44114-2301 ROBERT J. MAREK, ESQ. 615 West Superior Avenue 12th Floor Cleveland, Ohio 44113 - 2 - DYKE, J.: Defendant Donco Carriers, Inc. appeals from the order of the trial court which determined that plaintiff James C. Kinard is entitled to participate in the workers' compensation fund in connection with an extraterritorial injury. For the reasons set forth below, we affirm. On January 12, 1988, plaintiff was hired by Altruk Freight Systems, an interstate trucking company with its home terminal in Underwood, Iowa. Plaintiff was hired in Akron, Ohio after responding to an advertisement in the Cleveland Plain Dealer. In his employment with Altruk, plaintiff delivered freight throughout the contiguous United States, including terminals in Ohio. In July 1989 Altruk was dissolved and drivers had option of "transferring" their employment to Donco or Refrigerator Transport. While at Altruk's Fontana, California terminal plaintiff signed a transfer to Donco which provided that he would retain January 12, 1988 as his date of hire. In addition, plaintiff signed an application for a safety clearance which indicated that his "home terminal" was Oklahoma City, Oklahoma. Plaintiff took a defensive driving course and received a policy statement in Oklahoma City, and was supervised, paid and directed from Oklahoma City but did not sign a new contract of employment. It is undisputed that Donco participates in the Oklahoma workers compensation system, but it did not execute a choice of law agreement with plaintiff which - 3 - would have designated that state as the state in which workers compensation claims were to be filed. While working for both Altruk and Donco, plaintiff picked up loads in Bedford, Austintown, Youngstown and Toledo, Ohio, and plaintiff's undisputed evidence indicated that approximately forty- five to fifty per cent of his deliveries originated or terminated in Ohio. While between assignments, plaintiff kept his tractor at his home in Cleveland. On June 15, 1990, plaintiff drove his tractor from his home in Cleveland to Austintown, Ohio where he picked up a trailer of freight. Plaintiff delivered the freight to Colorado, and received another load of freight which he delivered to North East, Maryland on June 19, 1990. He then reported to Jessup, Maryland and awaited further instructions regarding his next assignment. On June 24, 1990, while at the restaurant of the Jessup truck stop, plaintiff fell and sustained injuries. Plaintiff subsequently filed an application for workers' compensation. On June 4, 1991, a claims examiner for the Bureau of Workers Compensation allowed plaintiff's claim. Donco objected and requested a hearing before a district hearing officer. The district hearing officer in turn determined that plaintiff "did not have sufficient exposure in the State of Ohio and there is no jurisdiction to consider this claim." It therefore disallowed the claim. - 4 - Plaintiff appealed to the Board of Review. On October 6, 1992, the Board issued an order which indicated that plaintiff was originally hired in Ohio, that plaintiff and Donco did not execute an agreement pursuant to R.C. 4123.54 to transfer workers' compensation coverage to a state other than Ohio, and that plaintiff performs work in Ohio. The Board of Review concluded that there is sufficient contact with the State of Ohio and that plaintiff sustained a compensable injury within the course and 1 scope of his employment. Donco commenced further appeal to the Industrial Commission. The Industrial Commission affirmed the order of the Board of Review and noted that it was supported by proof of record and was not contrary to law. On December 9, 1993, Donco appealed to the court of common pleas pursuant to R.C. 4123.519. The parties subsequently agreed that the matter would be determined upon motions for summary judgment. The trial court subsequently denied Donco's motion and entered final judgment for plaintiff. Donco now appeals and assigns two errors for our review. 1 We note that under Ohio law, where an employee sustains injuries while engaged in otherwise personal activities which are instigated by or subsidized by his employer, that employee will be within the course of his employment and the injury will be determined to have arisen from that employment for workers' compensation purposes. See Bower v. Industrial Commission (1939), 61 Ohio App. 469 (teacher injured while en route to a hotel where she was to stay during a mandatory "teacher's institute" or seminar); Weaver v. Eaton (May 3, 1990), Cuyahoga App. No. 56897, unreported (decedent killed from carbon monoxide in hotel room). - 5 - Donco's advances two related assignments of error which state: PLAINTIFF DOES NOT HAVE SUFFICIENT CONTACTS WITH THE STATE OF OHIO TO ENTITLE HIM TO RECEIVE WORKERS' COMPENSATION BENEFITS. R.C. 4123.54 DOES NOT DETERMINE WHETHER PLAINTIFF IS ENTITLED TO RECEIVE WORKERS' COMPENSATION BENEFITS. For the sake of convenience, we shall consider the assignments of error in inverse order. Within these assignments of error, Donco maintains that R.C. 4123.54 cannot be construed to provide for participation solely on the basis that there is no choice of law agreement requiring compensation to be sought in another jurisdiction. Donco further maintains that plaintiff does not have sufficient contacts with the state of Ohio to entitle him to participate in the Ohio Workers' Compensation system. R.C. 4123.54 provides in relevant part as follows: Every employee, who is injured or who contracts an occupational disease, and the dependents of each employee who is killed, or dies as the result of an occupational disease contracted in the course of employment, wherever such injury has occurred or occupational disease has been contracted, *** is entitled to receive, either directly from his self- insuring employer as provided in Section 4123.35 of the Revised Code, or from the state insurance fund, the compensation for loss sustained on account of the injury, occupational disease or death, and the medical, nurse, and hospital services and medicines, and the amount of funeral expenses in case of death, as are provided by this chapter. Whenever, with respect to an employee of an employer who is subject to and has complied with this chapter, there is possibility of conflict with respect to the application of workers' compensation laws because the contract of employment is entered into and all or some portion of the work is or is to be performed in a state or states other than Ohio, the employer and the employee may agree to be bound by the laws of this state or by the laws of some other state in which all - 6 - or some portion of the work of the employee is to be per- formed. The agreement shall be in writing and shall be filed with the bureau of workers' compensation within ten days after it is executed and shall remain in force until termi- natedor modified by agreement of the parties similarly filed. If the agreement is to be bound by the laws of this state and the employer has complied with this chapter, then the employee is entitled to compensation and benefits regardless of where the injury occurs or the disease is contracted and the rights of the employee and his dependents under the laws of this state are the exclusive remedy against the employer on account of injury, disease, or death in the course of and arising out of his employment. If the agreement is to be bound by the laws of another state and the employer has complied with the laws of that state, the rights of the employee and his dependents under the laws of that state are the exclusive remedy against the employer on account of injury, disease, or death in the course of and arising out of his employment without regard to the place where the injury was sustained or the disease contracted. ***. In McBridge v. Coble Express, Inc. (1993), 92 Ohio App.3d 505, 510, the court determined that in enacting this statute, the legislature vested the Industrial Commission and the common pleas courts with subject matter jurisdiction. Personal jurisdiction is a further predicate to a participation award, see id., at 509. The court explained: Personal jurisdiction is the authority of a particular forum to enter a judgment constitutionally binding on the defendant in the case. Friedenthal, Kane & Miller (1985) 10- 11, Civil Procedure, Section 2.2. The traditional bases, and still the underlying foundations for assertions of personal jurisdiction, are "the presence of the person or thing involved in the litigation within the forum's territorial boundaries or the consent [express or implied] of the party," although "strict" physical presence is no longer necessary. The Supreme Court has continued to develop the concept, presently requiring a court to find that a defendant has certain voluntary contacts with a forum, such that assertion of personal jurisdiction is defensible on the constitutional notions of notice, fairness, and due process. See Friedenthal at 102-103, Section 3.4. In this case, Coble, - 7 - the employer, knowingly entered into a contract of employment with an Ohio resident, for work to be performed primarily in Ohio, and the employee was injured in Ohio. Based on these facts, it would be difficult to find it unfair for Coble to submit to Ohio's jurisdictional authority. Dotson v. Com. Trans. Inc. (1991), 76 Ohio App.3d 98, 104, 601 N.E.2d 126, 130, citing Bridges v. Natl. Eng. & Contracting Co. (1990), 49 Ohio St.3d 108, 551 N.E.2d 163. Cf. Stanadyne, Inc. v. Indus. Comm. (1984), 12 Ohio St.3d 199, 12 OBR 264, 466 N.E.2d 171 (holding employee's residence irrelevant because all other material circumstances were related only to Indiana). Thus, "R.C. 4123.54 has not been construed to vest courts with jurisdiction over cases unless certain minimum contacts are present, and in determining this question, courts must look to the totality of the factual pattern before them." Horsley v. Best Cooling Tower Co. (September 20, 1990), Pike App. No. 447, unreported. See, also Dotson v. Com Trans, Inc. (1991), 76 Ohio App.3d 98, 102 (following a determination under R.C. 4123.54 of whether there is any applicable exception to the employee's right to compensation for his injury, court "must also determine whether this employment relationship has sufficient contacts with the state of Ohio to permit application of the Ohio Workers' Compensation Act to the work-related injury which occurred outside of Ohio.") In accordance with the foregoing, Donco is correct in asserting that participation in the Ohio workers' compensation system cannot be determined solely with reference to whether there are any exceptions to compensation under R.C. 4123.54. Thus, where entitlement has not been precluded by the execution of a choice of law agreement under R.C. 4123.54, there must be a further - 8 - consideration of whether there are sufficient contacts with this state. In this instance, however, the record reveals that the basis of the administrative award and the trial court's decision was the conclusion that there were sufficient contacts. There is no evidence that the award was rendered solely with reference to R.C. 4123.54. Accordingly, this assignment of error is not dispositive herein. With regard to the issue of sufficient contacts, we note that as an initial matter, Section 35, article II, of the Ohio Constitution which authorized the creation of the Workers' Compensation Fund, does not limit participation solely to workers injured in Ohio. See, also Lynch v. Mayfield (1990), 69 Ohio App.3d 229, 233. Further, in Prendergast v. Industrial Commission (1940), 136 Ohio St. 535, the supreme court held that G.C. 1465- 45, 1465-96 and 1465-99, predecessors to the definition of "employer" contained in R.C. 4123.01(B), must be deemed to apply to any employer doing business in Ohio who hires employees to work either in Ohio or elsewhere. Therefore, the Prendergast court held that an employee injured outside the state may recover under the Ohio act if the employing industry and his relationship thereto are localized in Ohio. Later, in State ex rel, Stanadyne, Inc., supra, the court set forth the following factors for consideration in determining whether employment is localized in Ohio for purposes of workers - 9 - compensation coverage: the locus of the employee's contract for hire; where the employee's name is included on payroll reports; the locus of control and supervision of the employee's job-related duties; the employee's residence; where the employee works; where the job-related injury occurred; whether the worker was employed in Ohio or at a branch facility of a company which also happened to do business in Ohio; and the state in which workers' compensation premiums are paid. See, also Lynch v. Mayfield (1990), 69 Ohio App.3d 229, 233. Accord Dotson v. Com Trans., supra, at 103. Applying the foregoing to the undisputed facts of this matter, we note that plaintiff was hired in Ohio by Altruk and his employment was then transferred, without a new contract of hire, to Donco, a related company. Plaintiff's work was supervised outside of Ohio and he was paid outside of Ohio but he paid income taxes in this state, resided in Ohio and kept his tractor at his home. It is further established that Donco is an Oklahoma corporation which participates in that state's workers compensation system, but the undisputed evidence demonstrates that forty-five to fifty per cent of plaintiff's work originated or terminated in this state. In light of the establishment of the factors of location of hire, residence and work location, we hold that the trial court correctly determined that plaintiff has sufficient contacts with this state to allow him to participate in the Ohio workers' compensation system. Accord Prendergast, supra, (employee originally hired in Ohio then transferred to Missouri, required to perform work in Ohio - 10 - was held entitled to Ohio compensation for an injury sustained in Indiana); Dotson v. Com Trans, Inc., supra, (plaintiff who was hired in Indiana by an Indiana company was found to have sufficient contacts to authorize participation in Ohio's workers' compensation system where it was established that he was an Ohio resident, paid taxes in Ohio, and performed a "significant part of his work" in Ohio). Donco urges a contrary result in reliance upon Spohn v. Industrial Commission (1941), 138 Ohio St. 42; Horsley, supra; and Stanadyne, supra. We find these cases distinguishable from this matter. In Spohn, the court held that where the employee works entirely in interstate commerce, the place of contracting should govern, in that case, Michigan. In Horsley, the court likewise determined that the most significant state contact is the place of contract for hire, and it found insufficient contacts where the plaintiff resided in Ohio and the defendant had an office in Ohio, but the plaintiff was hired in Florida, had never worked in Ohio, and was supervised, paid and sustained injury in Connecticut. Finally, in Stanadyne, the decedent was hired in Indiana, was injured in Indiana, did not enter Ohio and was not scheduled to do so. The second assignment of error is overruled. Judgment Affirmed. - 11 - It is ordered that appellee recover of appellant his 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. SPELLACY, C.J., AND SWEENEY, J., CONCUR ANN DYKE JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .