State ex rel. Brown v. Indus. Comm.

[Cite as State ex rel. Brown v. Indus. Comm., 2016-Ohio-662.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Dawn D. Brown, :

Relator, :

v. : No. 15AP-406

The Industrial Commission of Ohio : (REGULAR CALENDAR)
and The Laurels of Rockford, Inc.,
:
Respondents.
:

DECISION

Rendered on February 23, 2016

On brief: Larrimer and Larrimer, Thomas L. Reitz, for
relator.

On brief: Michael DeWine, Attorney General, and Cheryl J.
Nester, for respondents.

IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE'S DECISION

HORTON, J.
{¶ 1} Relator, Dawn D. Brown, filed this mandamus action after respondent, the
Industrial Commission of Ohio ("commission"), denied Brown's request to reset the
average weekly wage ("AWW") used to compute her worker's compensation benefit.
Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of Appeals, this matter
was referred to a magistrate, whose decision is appended below and incorporated herein.
{¶ 2} In accordance with Civ.R. 53(D)(3), Brown has filed the following objections
to the magistrate's decision:
[I.] The Industrial Commission failed adequately [sic] explain
its reasoning and failed cite [sic] any evidence supporting the
No. 15AP-406 2

basis for declining to apply [R.C.] 4123.62(a) aka the Tender
Years Doctrine.

[II.] The Industrial Commission failed adequately [sic]
explain its reasoning and failed cite [sic] any evidence
supporting the basis for declining to apply [R.C.] 4123.61
and/or the Tender Years Doctrine.

{¶ 3} To rule on these objections, we must "undertake an independent review as
to the objected matters to ascertain that the magistrate has properly determined the
factual issues and appropriately applied the law." Civ.R. 53(D)(4)(d).
{¶ 4} "Mandamus is a writ, issued in the name of the state to an inferior tribunal,
a corporation, board, or person, commanding the performance of an act which the law
specially enjoins as a duty resulting from an office, trust, or station." R.C. 2731.01. "In
order to grant a writ of mandamus, a court must find that the relator has a clear legal right
to the relief prayed for, that the respondent is under a clear legal duty to perform the
requested act, and that relator has no plain and adequate remedy at law." State ex rel.
Westchester Estates, Inc. v. Bacon, 61 Ohio St.2d 42, 44 (1980). For the following
reasons, we overrule Brown's objections and adopt the magistrate's decision in full.
{¶ 5} First, Brown has failed to demonstrate that she has a clear legal right to the
relief prayed for in her complaint. She seeks an order vacating the commission's denial
and finding that she is "entitled to an adjustment of [the] AWW," but provides no
explanation of how the facts of her case support recalculating the AWW under the "tender
years" doctrine codified in R.C. 4123.62(A) or the "special circumstances" outlined by R.C.
4123.61. Nor does she challenge the factual findings of the commission that supported its
denial.
{¶ 6} Brown's sole attempt to connect the facts of her case with a legal right to
recalculation of the AWW comes in her merit brief, where she states: "The Commission,
however, fails to adequately explain how a 22 year old women [sic] who is injured while
making $6.00 hours [sic], who stops working in 2001 to care for a premature baby and
shows in increase [sic] in earning potential making $9.36 an hour in 2001 is anything
other than a 'special circumstance' per [R.C.] 4123.61." (Relator's Brief, 5.) Brown cites no
evidence that demonstrates how her wage increase of $3.36 from 1993 to 2001 was
anything other than "a natural increase in earnings over the course of time," which, as
No. 15AP-406 3

both the commission and the magistrate noted, is not a "special circumstance" within the
meaning of R.C. 4123.61. State ex rel. Stevens v. Indus. Comm., 110 Ohio St.3d 32, 2006-
Ohio-3456, ¶ 10. With regard to the "tender years" doctrine, she makes no attempt to
demonstrate how the facts of her case support recalculation of the AWW under R.C.
4123.62(A). "The relator bears a heavy burden in a mandamus case and must submit facts
and produce proof that is plain, clear, and convincing." State ex rel. William E. v. Indus.
Comm., 10th Dist. No. 12AP-205, 2013-Ohio-1017, ¶ 9, citing State ex rel. Stevens v.
Indus. Comm., 10th Dist. No. 10AP-1147, 2012-Ohio-4408, ¶ 7. Without any explanation
of the basis of the clear legal right that she asserts, Brown's writ of mandamus must be
denied.
{¶ 7} Rather than demonstrate how she is entitled to such relief, Brown
principally argues, in both her merit brief and her objections, that the commission's
decision failed to comply with State ex. rel Noll v. Indus. Comm., 57 Ohio St.3d 203
(1991). In that case, the Supreme Court of Ohio had grown impatient with "formal,
boilerplate incantations" by the commission "in cases too numerous to cite," which
resulted in cases that were so cursory and devoid of analysis that they were "totally
meaningless on review." Noll at 205. It, therefore, imposed the requirement that the
commission "must specifically state what evidence has been relied upon, and briefly
explain the reasoning for its decision" when granting or denying benefits. Id. at paragraph
one of the syllabus. In support of her first objection, Brown argues that the commission
did not cite any case law or evidence to support its conclusion that the "tender years"
doctrine under R.C. 4123.62(A) did not apply, and the commission therefore ignored its
obligation under Noll. (Objections, 2.) In support of her second objection, she repeats this
argument with regard to the "special circumstances" provision under R.C. 4123.61 for
determining an AWW. (Objections, 3.)
{¶ 8} Although presented as objections, Brown nowhere contests the magistrate's
findings of fact or conclusions of law. In fact, she admits that "the magistrate provided an
excellent historical recitation of Ohio law regarding the adjustment of an [AWW]" and
describes the decision as "well researched." (Objections, 3.) Her primary complaint is that
"the Commission provided neither such recitation nor any application of the facts in Ms.
Brown's claim," and that the magistrate essentially did the commission's work for it.
No. 15AP-406 4

(Objections, 3.) This assertion echoes the primary argument of her merit brief: that the
commission failed to comply with Noll.
{¶ 9} However, the commission's report did not violate Noll. The decision, while
brief, reviewed the facts in the record pertaining to Brown's wages and even corrected a
"mistake of fact" in a previous order. (April 25, 2014 Record of Proceedings, 1.) It cited the
proper provision of the Ohio Revised Code under which Brown's claim for a recalculation
based on "special circumstances" arose and the relevant case law that, when applied to the
record of Brown's wages, showed that she was not entitled to recalculation.
(April 25, 2014 Record of Proceedings, 1.) Although the commission did not specifically
cite R.C. 4123.62(A), the provision that codifies the "tender years" doctrine, it accurately
described the doctrine in language that mirrored the statute. Compare April 25, 2014
Record of Proceedings at 2 (stating that the doctrine is "generally applied to those of very
young age on the date of injury who have a career track which reflects an expectation of
increased wages") with R.C. 4123.62(A) ("If it is established that an injured or disabled
employee was of such age and experience when injured or disabled as that under natural
conditions an injured or disabled employee's wages would be expected to increase, the
[commission] may consider that fact in arriving at an injured or disabled employee's
average weekly wage."). In Brown's case, the commission found that the record contained
no facts to support an application of the "tender years" doctrine. This was not a failure to
"state what evidence ha[d] been relied upon." Noll at 203. As the magistrate notes, Brown
"submitted no evidence upon which the deputy could have relied to support an AWW
adjustment under R.C. 4123.62(A)," which "indicate[s] the lack of a factual predicate" for
her claim. (Appendix, ¶ 48.) Rather than any violation of the Noll standard, this simply
indicates that Brown failed to prove her claim before the commission. We conclude that
the magistrate appropriately applied the law to the facts, as did the commission. Brown
has not demonstrated the clear legal right to the relief she requests. Consequently,
Brown's objections are overruled, and the writ is denied.
Objections overruled; writ denied.

TYACK and LUPER SCHUSTER, JJ., concur.
_________________
No. 15AP-406 5

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex rel. Dawn D. Brown, :

Relator, :

v. : No. 15AP-406

Industrial Commission of Ohio and : (REGULAR CALENDAR)
The Laurels of Rockford, Inc.,
:
Respondents.
:

MAGISTRATE'S DECISION

Rendered on November 23, 2015

Larrimer and Larrimer, and Thomas L. Reitz, for relator.

Michael DeWine, Attorney General, and Cheryl J. Nester,
for respondent Industrial Commission of Ohio.

IN MANDAMUS

{¶ 10} In this original action, relator, Dawn D. Brown, requests a writ of
mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate the March 20, 2014 order of its deputy denying relator's November 18, 2013
motion to reset her average weekly wage ("AWW"), and to enter an order resetting AWW
at $400.48.
Findings of Fact:
{¶ 11} 1. On November 9, 1993, relator injured her right knee and lower leg while
employed at Shane Hill Nursing Home ("Shane") located in Rockford, Ohio.
{¶ 12} 2. On November 16, 1993, relator completed a document provided by the
Ohio Bureau of Workers' Compensation ("bureau") captioned "Application for payment of
No. 15AP-406 6

Compensation and Medical Benefits." The bureau designated the form as a C-1. At part I
of the C-1 form, relator indicated that her occupation or job title at the time of injury was
"Nursing Assistant." Relator also indicated that her date of birth is June 4, 1971. Thus, on
her injury date, relator was 22 years of age.
{¶ 13} 3. Part II of the C-1 is the "Employer's Report." There, the employer is
asked to state the claimant's hourly rate of pay the week that the injury occurred. The
employer indicated that $6.00 was the hourly rate of pay. The employer is also asked to
state the number of hours claimant was scheduled to work the week of the injury. In
response, the employer wrote "31 Hours."
{¶ 14} 4. In February 1994, on bureau form C-31, a bureau claims examiner
completed a bureau worksheet calculating AWW to be $181.94 based upon the C-1 on file.
{¶ 15} 5. On November 18, 2013, some 20 years after her industrial injury, relator
moved that her AWW be reset at $290.16. In support, relator submitted a Shane paystub
showing that for the period ending June 16, 2001 relator was employed for 5.5 hours at
the rate of $9.36 per hour.
{¶ 16} In her motion, relator calculated that her AWW should be reset at $290.16
based upon her $9.36 rate of pay and the "31 Hours" listed on the C-1 by the employer.
($9.36 x 31 hours = $290.16.)
{¶ 17} 6. Following a December 16, 2013 hearing, a district hearing officer
("DHO") issued an order denying relator's motion to reset AWW. The DHO explained:
The District Hearing Officer denies the Injured Worker's
request to reset her Average Weekly Wage at $290.16 based
upon Ohio Revised Code 4123.61 and the fact that the
Injured Worker was of tender years at the time of injury (22
years old). The Injured Worker's motion indicates the
Injured Worker was earning $9.36 per hour times a 31 hour
work week in June of 2001, at which time her employment
ended with the Employer of Record. The District Hearing
Officer finds the 06/22/2001 pay stub submitted to the claim
file reflects that the Injured Worker was making $9.36 an
hour, but also reflects that the Injured Worker only worked a
5.50 hour work week. The District Hearing Officer finds it
notable that the Injured Worker's 03/25/2011 pay stub
reveals the Injured Worker was only making $8.56 per hour
and had only worked 9 hours over a two week pay period.
The District Hearing Officer finds the Injured Worker
submitted no evidence of advancement within her profession
No. 15AP-406 7

due to age and experience or any other profession. It appears
to this District Hearing Officer, that the Injured Worker's
increase in wages, since 1993, was due to economic factors
versus the Injured Worker's increase in age and experience.
Therefore, this District Hearing Officer finds a lack of
evidence supporting/constituting special circumstances for
purposes of adjusting/increasing the Injured Worker's
Average Weekly Wage.

{¶ 18} 7. Relator administratively appealed the DHO's order of December 16,
2013.
{¶ 19} 8. Following a January 30, 2014 hearing, a staff hearing officer ("SHO")
issued an order affirming the DHO's order. The SHO explains:
The order of the District Hearing Officer, from the hearing
issued 12/19/2013, is modified with the following rationale.
Therefore, the C-86 Motion filed by the Injured Worker filed
11/18/2013, is denied.

The Injured Worker's counsel made argument that the
"Tender Years" Doctrine should be applied to reset the
Injured Worker's average weekly wage at $290.16. This
argument is not found to be persuasive.

The Tender Years Doctrine is often used to increase an
Injured Worker's average weekly wage when the injury
occurs while the Injured Worker is relatively young.
Therefore, over the ensuing years the Injured Worker's
salary increases and as such, to do substantial justice, the
average weekly wage, is adjusted upward. However, in this
matter the Injured Worker testified she worked three to four
days a week with the Employer of record at the time of
injury. At that time, she was earning over $9.00 an hour.
Currently, she is scheduled 35 hours a week earning $8.95 an
hour. This Staff Hearing Officer does not find that the
Injured Worker is [sic] shown an increase in wages such that
the Tender Years Doctrine should be applied. The Injured
Worker is involved in approximately the same number of
hours per week worked and, in fact, has a lower wage now
than at the time of the injury.

As such, this Staff Hearing Officer does not find it
appropriate to apply the "Tender Years" Doctrine to increase
the Injured Worker's average weekly wage. The remainder of
the District Hearing Officer's order, not in conflict with this
order, remains in full force and effect.
No. 15AP-406 8

{¶ 20} 9. Relator administratively appealed the January 30, 2014 order of the SHO
to the three-member commission. In support, relator submitted a memorandum.
Attached to the memorandum as exhibits are copies of five W-2s for the year 2013. The
year 2013 employers and the wages earned by relator that year are as follows:
Employers Total Yearly Wages

Champaign Residential Services, Inc. $19,421.50

AWS $522.24

Parkway Local Schools $109.70

Van Wert City Schools $336.13

Mercer County Board of Education $435.25

{¶ 21} 10. In further support of her administrative appeal, relator's memorandum
submits a calculation of AWW at $400.48. In that calculation, relator totals her wages
from the five employers. That total is $20,824.82. She then divides the total wages by 52
weeks. ($20,824.82 ÷ 52= $400.48.)
{¶ 22} 11. In her memorandum in support of her administrative appeal, relator
states:
She stopped working with the employer of record in 2001 as
she gave birth to a premature baby at that time.
Subsequently she has gone on to re-enter the work force for
years and now works as a support specialist for
developmentally disabled individuals.

Ms. Brown's main employment is with Champaign
Residential Services Inc. where she earns $8.55 per hour.
She works on a part-time basis, but supplements this income
with four additional employers; AWS; Mercer County Board
of Education; Van Wert City Schools; and Parkway Local
Schools. We have W2 forms for 2013 for all five employers
showing her current average weekly wage is $400.48.

{¶ 23} 12. Exercising their discretion to hear relator's administrative appeal from
the SHO's order of January 30, 2014, the commission appointed a deputy.
No. 15AP-406 9

{¶ 24} 13. Following a March 20, 2014 hearing, the deputy issued an order that
was unanimously approved by the three-member commission. The deputy's order states:
It is the order of the Deputy that the order of the Staff
Hearing Officer, from the hearing dated 01/30/2014, is
vacated. The C-86 Motion, filed 11/18/2013, is denied.

The Deputy finds that indeed there was a mistake of fact with
respect to the underlying order. By way of history, the
Injured Worker was earning $6.00 an hour in 1993 when she
sustained her injury. The average weekly wage was set by the
Bureau of Workers' Compensation at $181.94.

The Injured Worker worked intermittently during the next
21 years. In 2001, the W-2s on file indicate that the Injured
Worker was earning $9.36 an hour. The Injured Worker
submitted five W-2 documents for the tax year 2013, which
shows significant earnings in the range of $400.48 in
earnings per week.

The Injured Worker's C-86 Motion requests that the aver-
age weekly wage be recalculated based upon special
circumstances as described in 4123.61 of the Ohio Revised
Code, as well as the Doctrine of Tender Years. Unfortunately,
this Deputy finds that neither authority applies to the facts in
the case.

4123.61 of the Ohio Revised Code calls for an adjustment to
the average weekly wage standard formula when the average
weekly wage "cannot justly be determined by applying this
section." The Supreme Court examined this very issue in the
case of State ex rel. Stevens v. Industrial Commission, 110
Ohio St.3d 32[, 2006-Ohio-3456]. This Court noted that the
erosion of the originally set average weekly wage over time
will "eventually happen to every Injured Worker whose claim
stays active long enough."

The Doctrine of Tender Years is generally applied to those of
very young age on the date of injury who have a career track
which reflects an expectation of increased wages. This notion
harkens back to the days of apprenticeships and those
working in journeymen status. The Deputy finds no such
facts indicated in this particular claim. For this reason, the
Deputy declines the adjustments pursuant to the Doctrine of
Tender Years.

{¶ 25} 14. On April 13, 2015, relator, Dawn D. Brown, filed this mandamus action.
No. 15AP-406 10

Conclusions of Law:
{¶ 26} Two issues are presented: (1) did the commission abuse its discretion in
determining that relator failed to prove entitlement to a reset of her AWW under the "age
and experience" provision of R.C. 4123.62(A), and (2) did the commission abuse its
discretion in determining that relator failed to prove entitlement to a reset of her AWW
under the "special circumstances" provision of R.C. 4123.61.
Relevant Statutes
{¶ 27} On the date of relator's injury, i.e., November 9, 1993, former R.C. 4123.61,
effective October 20, 1993, stated:
The average weekly wage of an injured employee at the time
of the injury * * * is the basis upon which to compute
benefits.

***

In cases where there are special circumstances under which
the average weekly wage cannot justly be determined by
applying this section, the administrator of workers'
compensation, in determining the average weekly wage in
such cases, shall use such method as will enable him to do
substantial justice to the claimants.

Effective June 30, 2006, R.C. 4123.61 currently provides:
The average weekly wage of an injured employee at the time
of the injury or at the time disability due to the occupational
disease begins is the basis upon which to compute benefits.

***

In cases where there are special circumstances under which
the average weekly wage cannot justly be determined by
applying this section, the administrator of workers'
compensation, in determining the average weekly wage in
such cases, shall use such method as will enable the
administrator to do substantial justice to the claimants,
provided that the administrator shall not recalculate the
claimant's average weekly wage for awards for permanent
total disability solely for the reason that the claimant
continued working and the claimant's wages increased
following the injury.

(Emphasis added.)
No. 15AP-406 11

{¶ 28} It can be noted that, since relator's injury date, R.C. 4123.61 was amended
by the addition of the italicized wording as noted above.
{¶ 29} On the date of relator's injury, i.e., November 9, 1993, former R.C. 4123.62,
effective October 20, 1993, stated:
(A) If it is established that an injured or disabled employee
was of such age and experience when injured or disabled as
that under natural conditions his wages would be expected to
increase, the administrator of workers' compensation may
consider that fact in arriving at his average weekly wage.

{¶ 30} Effective July 1, 2000, R.C. 4123.62 currently provides:

(A) If it is established that an injured or disabled employee
was of such age and experience when injured or disabled as
that under natural conditions an injured or disabled
employee's wages would be expected to increase, the
administrator of workers' compensation may consider that
fact in arriving at an injured or disabled employee's average
weekly wage.

{¶ 31} It can be noted that the current version of R.C. 4123.62 is not significantly
different than the version in effect on the date of relator's injury.
First Issue
{¶ 32} The relevant case law begins with Indus. Comm. v. Royer, 122 Ohio St. 271
(1930), a case decided by the Supreme Court of Ohio over 85 years ago. Royer provides
guidance regarding the applicability of R.C. 4123.62(A) at issue here.
{¶ 33} The Royer court interpreted Section 1465-84, a predecessor statute that
read essentially the same as the current R.C. 4123.62(A). Regarding Section 1465-84, the
Royer court stated:
In the absence of legislative interpretation, we are of the
opinion that age and experience should only be considered in
the case of persons of immature years, who have not yet
become skillful in the particular employment in which they
were engaged at the time of the injury. Those terms should
not be held to apply to all ambitious persons on the sole
ground that they aspire to promotion in more important,
more skillful, and more remunerative employment.

Id. at 276.
No. 15AP-406 12

{¶ 34} In State ex rel. Weil v. Indus. Comm., 10th Dist. No. 01AP-1242, 2002-
Ohio-4774, this court had occasion to apply Royer.
{¶ 35} Emma Weil was injured on September 7, 1985 while employed as a part-
time waitress for Frisch's Enterprises, Inc. Weil was 20 years old at the time of her
industrial injury and was studying to take the GED, having dropped out of high school at
age 17 to have her first child. Id. at ¶ 6. (Appendix Magistrate's Decision.)
{¶ 36} After obtaining her GED, Weil pursued college coursework and obtained a
post-high school degree. Weil at ¶ 7. (Appendix Magistrate's Decision.)
{¶ 37} In October 1989, some four years after her injury at Frisch's, Weil obtained
a job as an office manager. During the years 1993 through 1997, Weil had earnings of over
$25,000 per year from her office manager job. In 1994, Weil earned $27,133 at this job.
Weil at ¶ 8. (Appendix Magistrate's Decision.)
{¶ 38} Apparently, in 1998, relator underwent surgery and was awarded temporary
total disability ("TTD") compensation based upon her September 7, 1985 industrial injury.
TTD compensation was apparently paid based upon Weil's pre-injury earnings record at
Frisch's. Weil at ¶ 9. (Appendix Magistrate's Decision.)
{¶ 39} In February 2001, Weil moved for an adjustment of her AWW based upon
her office manager job. Weil at ¶ 10. (Appendix Magistrate's Decision.)
{¶ 40} Ultimately, in Weil, the commission denied the motion for an AWW
adjustment. The commission's order held that Weil was not entitled to an AWW
adjustment under R.C. 4123.62(A).
{¶ 41} Adopting the decision of its magistrate, this court, in Weil, upheld the
decision of the commission and denied the writ. Speaking through its magistrate, this
court, in Weil, explained:
Given the above authorities, it is clear that R.C. 4123.62(A)
applies only when a person of immature years could have
expected an increase in wages in the employment in which
he or she was engaged at the time of injury.

Accordingly, R.C. 4123.62(A) cannot be applied to the facts
of the instant case. There is no evidence that, because of her
age and experience, relator reasonably expected increased
earnings at Frisch's.
No. 15AP-406 13

That relator was ambitious enough to obtain her GED,
successfully pursue college course work, and thus obtain a
better paying job as an office manager does not entitle her to
an adjustment of her AWW or FWW under the Royer
rationale.

Id. at ¶ 42-44.
{¶ 42} Here, we know that on the date of her injury in November 1993, relator was
employed as a "nursing assistant" at the nursing home. At that time, relator was earning
$6.00 per hour and she had worked 31 hours during the week prior to the injury. We
further know that relator continued her employment at the nursing home for some seven
to eight years until June 2001 when she was earning $9.36 per hour. Her employment
with the nursing home ended in June 2001 because she gave birth to her premature baby.
By the year 2013, as shown by the submitted W-2s, relator had re-entered the workforce
earning substantially more than she did at the time of her injury or at the time she left her
employment at the nursing home.
{¶ 43} Based upon the above-described employment history, the commission's
deputy determined that an adjustment of AWW under R.C. 4123.62(A) (the so-called
tender years doctrine) was not justified.
{¶ 44} Here, the commission argues in support of the deputy's determination:
While Brown was injured at the age of 22, she has not
indicated whether she had just begun her work as a nursing
assistant or whether she already had some years of
experience in that field. She made no attempt to show that a
beginning nursing assistant could expect to be rewarded with
wage increases as she gained experience. Brown did
demonstrate that, eight years after her injury, she was
making more money in the same position, but there is no
evidence that this was anything other than a function of the
economy.

(Respondent's Brief, 9-10.)
{¶ 45} The commission here makes a good point. In fact, there is no evidence in
the record to support relator's motion for an adjustment of her AWW under R.C.
4123.62(A).
{¶ 46} To begin, the W-2 evidence relating to relator's earnings during the year
2013, long after she had left employment at the nursing home, is irrelevant to her R.C.
No. 15AP-406 14

4123.62(A) claim. This is so because the so-called tender years doctrine applies only to
the particular employment in which the claimant was engaged at the time of his or her
injury. Royer; Weil. Relator was not employed as a nursing assistant subsequent to her
June 2001 departure from her employment at the nursing home.
{¶ 47} As the deputy put it in his order, the tender years doctrine "is generally
applied to those of very young age on the date of injury who have a career track which
reflects an expectation of increased wages." Contrary to what is suggested here by relator,
the deputy's statement is consistent with the law set forth in this magistrate's decision.
{¶ 48} In the magistrate's view, contrary to the urging of relator here, the deputy's
order complies with State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991). This is
particularly so given that relator submitted no evidence upon which the deputy could have
relied to support an AWW adjustment under R.C. 4123.62(A). While the deputy's order
may not be a model of clarity, it does indicate the lack of a factual predicate to support an
AWW adjustment under R.C. 4123.62(A).
{¶ 49} Accordingly, based upon the above analysis, the commission did not abuse
its discretion in determining that relator failed to prove entitlement to a reset of her AWW
under the "age and experience" provision of R.C. 4123.62(A).
Second Issue
{¶ 50} In State ex rel. Stevens v. Indus. Comm., 110 Ohio St.3d 32, 2006-Ohio-
3456, the court held that a natural increase in earnings over the course of time is not a
"special circumstance" under R.C. 4123.61 that is sufficient to justify recalculation of an
individual's AWW. In reaching this holding, the Stevens court overruled two of its prior
decisions.
{¶ 51} The Stevens court succinctly set forth the problem before it:
Average weekly wage is based on earnings during the year
preceding injury or the onset of occupational disease. R.C.
4123.61. Thus, what may have been, for example, fair
compensation in 1980 generally falls far short in 2006, and
this circumstance, in turn, generates requests for a resetting
of the average weekly wage under the "special
circumstances" provision of R.C. 4123.61.

Id. at ¶ 5.
No. 15AP-406 15

{¶ 52} Citing State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 286 (1990),
the Stevens court noted that "special circumstances" have generally been confined to
uncommon situations. Citing two prior cases, the Stevens court observed that it had
emphatically stated that a natural increase in wages over the course of an employee's
career is not uncommon and, hence, is not a special circumstance warranting a departure
from the standard calculation.
{¶ 53} The Stevens court concluded its opinion:
We also repeat our entreaty to the General Assembly to
address this shortcoming in the workers' compensation
system and fashion a method to allow the average weekly
wage to more accurately reflect, over time, the economic
realities of the individual claimant or the economic
landscape as a whole. Until then, however, we cannot permit
the special-circumstances provision of R.C. 4123.61 to be the
remedy to resolve this problem.

Id. at ¶ 13.
{¶ 54} Here, it is clear that Stevens compels the denial of relator's claim that her
post-injury increase in earnings is a special circumstance under R.C. 4123.61 such that she
is entitled to a reset of her AWW.
{¶ 55} It has already been shown that the increase in her rate of pay from $6.00
per hour to $9.36 per hour over a seven to eight year period at her job of injury does not
justify an AWW reset under R.C. 4123.62(A). Neither can the increase in her rate of pay
at her job of injury create a special circumstance under R.C. 4123.61.
{¶ 56} Moreover, relator's earnings during the year 2013 arguably showing a
weekly wage of $400.48 does not provide a justification for an adjustment of her AWW
under the special circumstances provision of R.C. 4123.61. Clearly, Stevens prohibits the
commission from adjusting the AWW based upon the 2013 earnings occurring some 20
years after the industrial injury.
{¶ 57} Therefore, based upon the foregoing analysis, the magistrate finds that the
commission did not abuse its discretion in determining that relator failed to prove
entitlement to a reset of her AWW under R.C. 4123.61.
No. 15AP-406 16

{¶ 58} Accordingly, it is the magistrate's decision that this court deny relator's
request for a writ of mandamus.

/S/ MAGISTRATE
KENNETH W. MACKE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
error on appeal the court's adoption of any factual finding or
legal conclusion, whether or not specifically designated as a
finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically objects
to that factual finding or legal conclusion as required by Civ.R.
53(D)(3)(b).