"Special circumstances" is undefined, but has generally been confined to uncommon situations. 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. We reasoned:
" State ex rel.Wireman v. Indus. Comm. (1990), 49 Ohio St.3d 286, 288, 551 N.E.2d 1265. {¶ 17} Situations that have supported a "special circumstance" award include the setting of the initial AWW when the claimant was 18 years old with a low-paying job but proved capable of much higher-paying employment than that upon which AWW was set, State ex rel. Bailey v. Indus. Comm. (Aug. 29, 1995), Franklin App. No. 94APD09-1284, 1995 WL 507462, cited in State ex rel. Gillette v. Indus. Comm. (2002), 95 Ohio St.3d 20, 22, 764 N.E.2d 1024; an AWW based on the short time (four weeks) between the date of employment and the injury when determined to be unjust in light of claimant's extremely light schedule and her past demonstrated earning power, State ex rel. Clark v. Indus. Comm. (1994), 69 Ohio St.3d 563, 634 N.E.2d 1014; the commission's inclusion of 21 weeks when claimant was operating a gas station at a net loss, Smith v. Indus. Comm. (1986), 25 Ohio St.3d 25, 25 OBR 21, 494 N.E.2d 1140; and an AWW based on the year preceding a 1969 injury subject to R.C. 4123.58's cap as it existed in 1969 where claimant worked for an additional 26 years at a much higher salary, Price v. Cent. Serv., Inc., 97 Ohio St.3d 245, 2002-Ohio-6397, 779 N.E.2d 195. {¶ 18} In State ex rel. Cawthorn v. Indus. Comm. (1997), 78 Ohio St.3d 112 , 114, 676 N.E.2d 886, this court noted that R.C. 4123.61 "provides a standard AWW computation that is to be used in all but the most exceptional cases.
Indeed, the special circumstances exception is provided so that the AWW formula does not penalize the injured employees who tried to earn an income but failed. Wireman at 288, 551 N.E.2d at 1267; Smith v. Indus. Comm. (1986), 25 Ohio St.3d 25, 25 OBR 21, 494 N.E.2d 1140. An employee who is able to earn a living only by persevering for more than eighteen years while losing ground to insidious occupational disease should be compensated equitably for his or her disability.
The Industrial Commission also has discretion to exclude periods of employment from the average weekly wage calculation. Smith v. Indus. Comm. (1986), 25 Ohio St.3d 25, 25 OBR 21, 494 N.E.2d 1140. In this case, the claimant was employed part-time and on a temporary basis by Logan's Bookstore. (For example, in one two-week period, claimant was employed only one day, earning $26.47.)
" Smith v. Indus. Comm., 25 Ohio St.3d 25, 27 (1986).
Id. {¶ 24} In Smith v. Indus. Comm., 25 Ohio St.3d 25 (1986), the Supreme Court of Ohio observed that including weeks the claimant operated a gas station at a net loss in the AWW calculation would "increase[] the number of weeks by which the total earnings are divided * * *, without adding any income whatsoever to the total earnings." Smith at 27. The Smith court concluded that such a "lopsided alteration of the average weekly wage calculation produce[d] the type of inequitable result which the legislature sought to avoid through the inclusion of the 'special circumstances' provision in R.C. 4123.61."
State ex rel. Wireman v. Indus. Comm. (1990), 49 Ohio St.3d 286, 288 * * *. Situations that have supported a "special circumstance" award include the setting of the initial AWW when the claimant was 18 years old with a low-paying job but proved capable of much higher-paying employment than that upon which AWW was set, State ex rel. Bailey v. Indus. Comm. (Aug. 29, 1995), Franklin App. No. 94APD09-1284, 1995 WL 507462, cited in State ex rel. Gillette v. Indus. Comm. (2002), 95 Ohio St.3d 20, 22 * * *; an AWW based on the short time (four weeks) between the date of employment and the injury when determined to be unjust in light of claimant's extremely light schedule and her past demonstrated earning power, State ex rel. Clark v. Indus. Comm. (1994), 69 Ohio St.3d 563 * * *; the commission's inclusion of 21 weeks when claimant was operating a gas station at a net loss, Smith v. Indus. Comm. (1986), 25 Ohio St.3d 25 * * *; and an AWW based on the year preceding a 1969 injury subject to R.C. 4123.58's cap as it existed in 1969 where claimant worked for an additional 26 years at a much higher salary, State ex rel. Price v. Cent. Serv. Inc., 97 Ohio St.3d 245, 2002-Ohio-6397 * * *. In State ex rel. Cawthorn v. Indus. Comm. (1997), 78 Ohio St.3d 112, 114 * * *, this court noted that R.C. 4123.61 "provides a standard AWW computation that is to be used in all but the most exceptional cases.
However, the cases cited on special circumstances indicate to the contrary. In addition to the cases involving felons, one case deals with a person who started a business and initially lost money, Smith v. Indus. Comm (1986), 25 Ohio St.3d 25, while the other case dealt with an individual who was forced back to work due to a financial reversal. Riley v. Indus. Comm. (1983), 9 Ohio App.3d 71. None of these situations are uncommon.
However, in regard to the second paragraph of R.C. 4123.61, the court determined that the period of incarceration was a special circumstance that justified the use of an alternative method of computing claimant's AWW. The court relied on Smith v. Indus. Comm. (1986), 25 Ohio St.3d 25, for the proposition that, while a period of unemployment might not be excludable from the standard calculation, it could nonetheless involve present "special circumstances" under which the AWW could not be justly determined by using the standard formula. {¶ 17} In the present action, claimant was injured shortly after returning to the labor market.
However, in regard to the second paragraph of R.C. 4123.61, the court determined that the period of incarceration was a special circumstance that justified the use of an alternative method of computing claimant's AWW. In writing the court's opinion, Judge Moyer relied on Smith v. Indus. Comm. (1986), 25 Ohio St.3d 25, for the proposition that, while a period of unemployment might not be excludable from the standard calculation, it can establish the special circumstances under which a claimant's AWW cannot be justly determined by use of the standard formula. {¶ 52} In State ex rel. Clark v. Indus. Comm. (1994), 69 Ohio St.3d 563, a woman who had been steadily employed at a restaurant for many years took a voluntary leave of absence to care for her grandchild.