Summary
In Smith v. Indus. Comm. (1986), 25 Ohio St.3d 25, 25 OBR 21, 494 N.E.2d 1140, for example, we found that the period in which a claimant operated a gas station at a net loss was a "special circumstance" to be considered in calculating the AWW.
Summary of this case from State, ex Rel. Wireman, v. Indus. CommOpinion
No. 86-21
Decided July 9, 1986.
Workers' compensation — Computation of average weekly wage — "Special circumstances" to be considered, when — R.C. 4123.61.
APPEAL from the Court of Appeals for Franklin County.
Appellant, Donald E. Smith, was a journeyman carpenter in the construction industry. Due to the slump in the construction business during 1981 and 1982, appellant was unable to find continued work in his trade and drew unemployment benefits for a time. Appellant gave up his unemployment benefits and attempted to operate a gasoline station from September 24, 1981 through April 1, 1982. However, this business venture resulted in a net loss of $3,022.21 and appellant was eventually forced into bankruptcy.
On September 2, 1982, appellant found employment as a laborer with J.D. Drilling Co. On September 24, 1982, appellant sustained multiple injuries as a result of being struck by a falling pile-driver weight. His workers' compensation claim was allowed and appellant received temporary total compensation for "contusion right cheek and face periorbital area, contusion and hematoma of right pectoral area, tear right biceps tendon, abrasion and contusion right upper arm."
Pursuant to R.C. 4123.61, appellant's first twelve weeks of temporary total compensation were based upon his full weekly wage at the time of his injury. At the end of this period, a district hearing officer was required to recalculate appellant's average weekly wage based upon his average wage for the year preceding the injury.
This calculation took into account the following factors: that from September 24, 1981 to April 1, 1982, relator operated a gasoline station without realizing any earnings; that he earned $685.52 from October 26, 1981 to October 31, 1981; that he earned $3,477.76 from November 1, 1981 to November 29, 1981; that he received no earnings from November 30, 1981 to April 1, 1982; that he received unemployment compensation of $2,795.00 from April 1, 1982 to September 1, 1982; and that he earned $714.00 from September 2, 1982 to September 24, 1982, the date of his injury.
Appellant's cumulative total earnings for the period from September 24, 1981 to September 24, 1982 equaled $7,672.28. Subtracting the $2,795.00 appellant had received in unemployment compensation reduced the total cumulative earnings to $4,877.28. Dividing this figure by thirty (fifty-two weeks minus the twenty-two weeks on unemployment) established appellant's average weekly wage at $162.58.
This average weekly wage calculation was affirmed on subsequent appeals to the regional board of review and the Industrial Commission. Appellant instituted an action in mandamus in the court of appeals contending that the commission had abused its discretion in the computation of his average weekly wage. On November 19, 1985, the appellate court issued a decision denying the requested writ of mandamus.
The cause is now before this court upon an appeal as of right.
Larrimer Larrimer and Craig Aalyson, for appellant.
Anthony J. Celebrezze, Jr., attorney general, and Dennis Hufstader, for appellee.
The within controversy concerns the manner in which the commission calculated appellant's average weekly wage for the year preceding the injury. R.C. 4123.61 provides in relevant part:
"* * * In ascertaining the average weekly wage for the year previous to the injury, or the date the disability due to the occupational disease begins any period of unemployment due to sickness, industrial depression, strike, lockout, or other cause beyond the employee's control shall be eliminated.
"In cases where there are special circumstances under which the average weekly wage cannot justly be determined by applying this section, the commission, in determining the average weekly wage in such cases, shall use such method as will enable it to do substantial justice to the claimants."
Appellant argues that the circumstances of this case compel the determination of his average weekly wage pursuant to the "special circumstances" provision of R.C. 4123.61. In particular, appellant contests the commission's consideration of the period of time when he operated a gasoline station at a net loss. Appellant also points out that his average weekly wage while working at his trade was $436.01. The disparity between the commission's calculation for appellant's average weekly wage ($162.58) and what he made while employed as a craftsman is said to constitute another factor compelling the imposition of the "special circumstances" provision of R.C. 4123.61.
In regard to the latter of these considerations, R.C. 4123.61 clearly makes irrelevant any wage information prior to September 24, 1981, as only the fifty-two weeks prior to the date of the injury are to be considered.
However, we find merit in appellant's objection to the commission's consideration of the period of time in which he operated a gasoline station at a net loss. The consideration of this period in the average weekly wage calculation increases the number of weeks by which the total earnings are divided from nine to thirty, without adding any income whatsoever to the total earnings. This lopsided alteration of the average weekly wage calculation produces the type of inequitable result which the legislature sought to avoid through the inclusion of the "special circumstances" provision in R.C. 4123.61.
Accordingly, we find the commission's consideration of the period of time in which appellant operated a gasoline station without realizing any income constitutes an abuse of discretion. In light of the special circumstances in the within case, we hereby reverse the judgment of the court of appeals and grant a writ of mandamus directing the commission to recalculate appellant's average weekly wage as provided under the special circumstances provision of R.C. 4123.61.
Judgment reversed and writ allowed.
CELEBREZZE, C.J., SWEENEY, LOCHER, HOLMES, C. BROWN, DOUGLAS and WRIGHT, JJ., concur.