{¶ 1} Relator, FedEx Ground Package System, Inc. ("FedEx Ground"), commenced this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio to vacate its order setting the average weekly wage ("AWW") and the full weekly wage ("FWW") of respondent Christopher J. Roper ("claimant") at $417.05 and $457.36 respectively, and to enter an order setting the AWW and FWW without regard to the wages claimant earned in concurrent dissimilar employment during the year prior to the date of injury.
{¶ 2} This court referred the matter to a magistrate of this court, pursuant to Civ. R. 53 and Loc. R. 12(M) of the Tenth District Court of Appeals. The magistrate issued a decision, including findings of fact and conclusions of law, which is appended to this opinion. In his decision, the magistrate essentially concluded that the commission did not abuse its discretion in setting claimant's AWW and FWW at the amounts noted above. The magistrate therefore recommended that this court deny relator's request for a writ of mandamus. No party has filed objections to the magistrate's findings of fact, and we adopt them as our own. However, both relator and the commission object, albeit for different reasons, to the magistrate's conclusions of law. Thus, this matter is now before this court for a full, independent review.
{¶ 3} FedEx Ground's two objections to the magistrate's conclusions of law are as follows:
I. The Magistrate erred in concluding that the Ohio Supreme Court's interpretation of "average weekly wage[]" in State ex rel. Smith v. Indus. Comm. (1933), 127 Ohio St. 217 [187 N.E. 768] does not prohibit the aggregation of wages from dissimilar concurrent employment.
II. The Magistrate erred in finding that special circumstances warrant the adjustment of Roper's Average Weekly Wage and Full Weekly Wage.
{¶ 4} The commission's objection states:
The magistrate erred in not finding that the Industrial Commission's computations of the average weekly wage and the full weekly wage were in accordance with the standard formulae for these calculations, and did not require consideration of the special circumstances provision of R.C. 4123.61.
{¶ 5} Before analyzing these objections, we will briefly outline the facts of this case. In December 2004, claimant began working part-time for FedEx Ground as a package handler. This job required claimant to move packages from a conveyer belt to trailers. In April 2006, claimant began concurrent employment at Integrated Pest Control ("Integrated") as a wildlife-control operator. This job required claimant to spray floors and baseboards. In October 2006, claimant *Page 155 sustained an injury arising out of and in the course of his part-time employment with FedEx Ground. An industrial claim was certified by FedEx Ground, which is a self-insured employer, for "lumbar strain/sprain; L4-5 disc protrusion." After FedEx Ground was unable to accommodate claimant's medical restrictions, it began paying temporary total disability ("TTD") compensation to claimant.
{¶ 6} In calculating claimant's AWW and FWW, FedEx Ground took into account only claimant's earnings at FedEx Ground. Claimant moved for a recalculation of his AWW and FWW by the commission. A district hearing officer ("DHO") issued an order resetting claimant's AWW and FWW in a manner that took into account claimant's wages from Integrated. The DHO reasoned that there were special circumstances that necessitated the recalculation. Relator appealed to a staff hearing officer ("SHO"), who issued an order that also reflected a finding of special circumstances and recalculated claimant's AWW and FWW in a manner that accounted for claimant's wages with FedEx Ground and Integrated. Another SHO refused FedEx Ground's administrative appeal, and the three-member commission subsequently mailed an order denying FedEx Ground's request for reconsideration. FedEx Ground then filed the mandamus action with this court.
{¶ 7} In analyzing FedEx Ground's request for a writ of mandamus, the magistrate, in his decision, set forth the statutory language of the current version of R.C. 4123.61, and reviewed case law addressing issues relating to AWW and concurrent employment, including the Supreme Court of Ohio's decision in State ex rel. Smith v. Indus. Comm. (1933),127 Ohio St. 217, 187 N.E. 768, and this court's decision inLipsky v. Barry (Dec. 11, 1990), Franklin App. No. 90AP-07, 1990 WL 204741. Upon analyzing the statutory and case law, the magistrate concluded that neither Smith norLipsky prohibited the commission's decision in this matter and essentially further resolved that the commission did not abuse its discretion in determining that "special circumstances," as that term is used in R.C. 4123.61, require inclusion of wages from FedEx Ground and Integrated in the AWW calculation.
{¶ 8} By its objections to the magistrate's decision, FedEx Ground argues that the magistrate erred in concluding that Smith does not prohibit the aggregation of wages from dissimilar concurrent employment for purposes of determining the appropriate AWW. FedEx Ground further argues that the magistrate erred in concluding that special circumstances warrant the adjustment of claimant's AWW and FWW.
{¶ 9} R.C. 4123.61 currently states:
The average weekly wage of an injured employee at the time of the injury * * * is the basis upon which to compute benefits.
In cases of temporary total disability the compensation for the first twelve weeks for which compensation is payable shall be based on the full weekly *Page 156 wage of the claimant at the time of the injury or at the time of the disability due to occupational disease begins * * *.
Compensation for all further temporary total disability shall be based as provided for permanent disability claims.
In death, permanent total disability claims, permanent partial disability claims, and impairment of earnings claims, the claimant's or the decedent's average weekly wage for the year preceding the injury or the date the disability due to the occupational disease begins is the weekly wage upon which compensation shall be based. 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 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 * * *.
{¶ 10} The Smith case, which was decided in 1933, involved volunteer firemen who were seriously injured while en route to a fire. The firemen were also concurrently employed as a baker and restaurant worker, respectively. The central issue before the Smith court was whether the phrase "average weekly wages," as used in G.C. 1465-84, the predecessor to R.C. 4123.61, "mean[s] the amount received by the relators as firemen, or does it include the amount received as firemen and also the amount accruing from their regular occupations?" Smith, 127 Ohio St. at 220, 187 N.E. 768. The Smith court, while recognizing its policy to liberally construe the provisions of the Workers' Compensation Act in favor of injured employees and their dependents, essentially resolved that it could not construe the phrase "average weekly wages" as used in the pertinent statute to include remuneration received from both employers. TheSmith court held as follows: "We hold, upon the facts in these cases, that the relators are not entitled to awards by the Industrial Commission, as respondent, on a basis including their earnings as a baker and restaurant worker, respectively." Id. at 222, 187 N.E. 768. In other words, the Smith court "found that, under GC § 1965-84, the predecessor to R.C. 4123.61, the term `average weekly wage' was not intended to include earnings received by the claimant in an occupation separate and distinct from the one in which he was injured."Lipsky, 1990 WL 204741, at *2, citing Smith at 222, 187 N.E. 768.
{¶ 11} When Smith was decided, G.C. 1465-84 provided, in its entirety, as follows: "The average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits." Since the Smith *Page 157 decision, the General Assembly has significantly expanded upon this language. In addition to retaining the language from G.C. 1465-84, R.C. 4123.61 also provides that "claimant's * * * average weekly wage for the year preceding the injury * * * is the weekly wage upon which compensation shall be based." Furthermore, R.C. 4123.61 provides that "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."
{¶ 12} Because the special-circumstances language in the applicable statute did not exist when Smith was decided, the Smith decision is not controlling as to the issue of whether the commission abused its discretion in finding that the special-circumstances provision in the statute required the inclusion of claimant's wages with FedEx Ground and Integrated in setting claimant's AWW and FWW. On this basis, we find that relator's first objection to the magistrate's decision is without merit.
{¶ 13} In both relator's second objection and in the commission's objection, the parties argue that the SHO abused its discretion in concluding that special circumstances warrant the adjustment of claimant's AWW and FWW. It appears from the SHO's decision that it found special circumstances to exist solely because claimant was employed at two part-time jobs. As correctly noted by relator, "part-time employment is not per se a `special circumstance.'" State ex rel. Logan v.Indus. Comm. (1995), 72 Ohio St.3d 599, 601,651 N.E.2d 1008 (noting that though part-time employment is not per se a special circumstance, in some part-time situations, special circumstances may indeed exist). Without more, the SHO's conclusory finding of special circumstances based only on the claimant's being employed at two part-time jobs does constitute an abuse of discretion. Therefore, to this extent, relator's second objection and the commission's objection are sustained.
{¶ 14} However, the commission goes on to argue that even though the SHO abused its discretion in finding special circumstances, issuing a writ is not necessary in this instance because the SHO was correct to use both employments, as this is what is contemplated in the standard formula set forth in R.C. 4123.61. We find the commission's position well taken.
{¶ 15} The "`standard formula for establishing [average weekly wage] is to divide claimant's earnings for the year preceding injury by fifty-two weeks.'" State ex rel.McDulin v. Indus. Comm. (2000), 89 Ohio St.3d 390, 391,732 N.E.2d 367, quoting State ex rel. Clark v. Indus.Comm. (1994), 69 Ohio St.3d 563, 565, 634 N.E.2d 1014. Pursuant to R.C. 4123.61, when "special circumstances" render the traditional formula untenable, the commission may deviate *Page 158 from the standard AWW formula. McDulin at 393,732 N.E.2d 367. Although the phrase "special circumstances" is not defined by the statute, its application has been limited to uncommon situations. State ex rel. Wireman v. Indus.Comm. (1990), 49 Ohio St.3d 286, 288, 551 N.E.2d 1265. Moreover, in calculating AWW, the following considerations dominate: the AWW must do substantial justice to the claimant, and it should not provide a windfall. Id. at 287, 551 N.E.2d 1265.
{¶ 16} In Logan, 72 Ohio St.3d 599,651 N.E.2d 1008, the claimant was injured while in the course of and arising out of his employment. The commission derived claimant's AWW by dividing his total wages for the year prior to the injury by 52. The claimant argued that he was employed full-time for only 16 of the 52 weeks preceding his injury and that his weeks of unemployment and part-time employment be omitted from the calculation. The DHO excluded periods of the claimant's unemployment, but included amounts earned at this part-time employment. The claimant filed a mandamus action in this court, contending that his AWW was too low. This court rejected claimant's attempt to exclude the weeks of part-time employment. The Supreme Court of Ohio stated, "We also reject claimant's entreaty to exclude his weeks of part-time work. Part-time work is not listed among those situations that R.C. 4123.61 decreed must be excluded from the AWW computation. Elimination, therefore, can be accomplished only through the `special circumstances' provision of R.C. 4123.61." Logan at 601, 651 N.E.2d 1008. Thus, in Logan, the court sanctioned the commission's inclusion of wages from concurrent employment to arrive at the claimant's AWW under the statute's standard formula.
{¶ 17} Additionally, in State ex rel. Powellv. C.R. O'Neil Co., 116 Ohio St.3d 22,2007-Ohio-5504, 876 N.E.2d 520, the Supreme Court of Ohio granted a writ of mandamus to a claimant because the commission failed to include miscellaneous wages that the claimant had earned from concurrent self-employment and that were reflected on IRS 1099 forms. The court began its analysis of the AWW calculation issue by stating, "There is no dispute that evidence of Powell's self-employment income for the relevant periods * * * was not considered. There is also no dispute that the evidence is material, since R.C. 4123.61 bases the average weekly wage on earnings for the year prior to injury." Id. at ¶ 7. The court in Powell recognized that the standard formula for calculation of AWW includes all earnings for the year preceding the injury, whether or not they were earned in the job in which the claimant suffered the disabling injury or occupational disease.
{¶ 18} Given the foregoing, even though the commission abused its discretion in seemingly declaring part-time employment to be a special circumstance per se, because the AWW calculation is nonetheless in accordance with R.C. 4123.61, issuing a writ of mandamus is not warranted in this instance. *Page 159
{¶ 19} Turning to the FWW, the magistrate erred in applying the special-circumstances provision to this calculation because the provision applies to the calculation of the FWW only when "there are special-circumstances under which the average weekly wage cannot justly be determined." Id. Because the AWW can be justly determined using the standard calculation, application of the special circumstances provision is misplaced. The General Assembly did not define FWW, but reserved to the commission the task of calculating it. To calculate the FWW in cases where no special circumstances exist, the commission may, in its discretion, use joint resolution No. R80-7-48, which it promulgated jointly with the Ohio Bureau of Workers' Compensation. State ex rel. Taylor v. Indus.Comm., 10th App. No. 05AP-803, 2006-Ohio-4781,2006 WL 2627557, ¶ 14; State ex rel. Huntsville v. Indus.Comm., 10th App. No. 04AP-281, 2004-Ohio-6615,2004 WL 2829029, ¶ 41. Having done so in this case, the commission did not abuse its discretion.
{¶ 20} In summary, relator's first objection is overruled, relator's second objection is sustained in part, and the commission's objection to the magistrate's decision is sustained. We adopt the magistrate's findings of fact, but reject the conclusions of law. Accordingly, we deny the requested writ of mandamus.
Objections sustained in part and overruled in part; writ denied.
SADLER and KLINE, JJ., concur.
KLINE, J., of the Fourth Appellate District, sitting by assignment.