State ex rel. Huntington Bancshares Inc. v. Berry

[Cite as State ex rel. Huntington Bancshares Inc. v. Berry, 2022-Ohio-531.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Huntington Bancshares :
Incorporated,
:
Relator,
:
v. No. 20AP-161
:
Laura Berry et al., (REGULAR CALENDAR)
:
Respondents.
:

D E C I S I O N

Rendered on February 24, 2022

On brief: M. Soto Law Office, LLC, and Michael Soto, for
relator.

On brief: Larrimer & Larrimer, and Thomas L. Reitz, for
respondent Laura Berry.

On brief: Dave Yost, Attorney General, and Denise A. Gary,
for respondent Industrial Commission of Ohio.

IN MANDAMUS
ON OBJECTION TO THE MAGISTRATE'S DECISION

DORRIAN, J.
{¶ 1} In this original action, relator, Huntington Bancshares Incorporated
("Huntington"), seeks a writ of mandamus ordering respondent Industrial Commission
of Ohio ("commission") to vacate its order setting the average weekly wage ("AWW") for
respondent Laura Berry and to enter a new order setting Berry's AWW at a lower figure.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
No. 20AP-161 2

of fact and conclusions of law, which is appended hereto. The magistrate recommends
this court deny Huntington's request for a writ of mandamus. Huntington has filed the
following objection to the magistrate's decision:
THE MAGISTRATE MISAPPLIED THE SOME EVIDENCE
RULE. THE SPECIAL CIRCUMSTANCES EXCEPTION TO
AWW CALCULATION DOES NOT APPLY TO THIS CASE.

{¶ 3} Berry began working for Huntington on May 7, 2018. On June 12, 2018,
Berry sustained a work-related injury. Berry's workers' compensation claim was allowed
for right humeral shaft fracture. Huntington paid Berry wage continuation from June 13
to 21, 2018, and temporary total disability compensation from June 22 to August 19, 2018.
Huntington's third-party administrator established Berry's full weekly wage at $692.40
and AWW at $68.94.
{¶ 4} On April 5, 2019, Berry filed a motion with the Ohio Bureau of Workers'
Compensation ("BWC") requesting that her AWW be set the same as her full weekly wage.
Berry supported the motion with her affidavit, which stated that in the year preceding her
injury she provided caregiving services to her mother-in-law at a wage rate of $3,000 per
month and sold $4,664.80 worth of crafts.
{¶ 5} A district hearing officer ("DHO") granted Berry's motion and set Berry's
AWW at $742.02. The DHO included Berry's wages from the six weeks she worked at
Huntington and the amount Berry claimed to have earned providing caregiving services
to her mother-in-law in Berry's wage total. The DHO refused to include the amounts
Berry claimed from her craft sales in the AWW calculation, as Berry failed to present
evidence of the costs she incurred to generate those sales. Huntington appealed the
DHO's order.
{¶ 6} Following a December 27, 2019 hearing, a staff hearing officer ("SHO")
vacated the DHO's order and set Berry's AWW at $597.48. The SHO denied Berry's
request to include the $3,000 per month Berry claimed to have earned providing
caregiving services in the AWW calculation, as Berry failed to present "W-2's, paystubs,
or cancelled checks" to "document these wages." (Stip.R. at 35.) The SHO further stated
that "[i]n order to do substantial justice to the Injured Worker, as set forth in R.C.
4123.61," the SHO was excluding 46 weeks from the AWW divisor. (Stip.R. at 35.) The
SHO noted that "during those 46 weeks, the injured worker was unemployed because she
No. 20AP-161 3

was caring for an ill family member, but nonetheless continued looking for full-time
employment which she ultimately secured with the Employer of Record." (Stip.R. at 35.)
The SHO calculated Berry's AWW by dividing Berry's wages from Huntington, $3,584.96,
by the 6 weeks Berry worked at Huntington.
{¶ 7} The commission refused Huntington's appeal from the SHO's order.
Huntington filed its complaint in mandamus with this court on March 17, 2020.
{¶ 8} R.C. 4123.61 addresses the AWW calculation, providing as follows:
The average weekly wage of an injured employee at the time
of the injury * * * is the basis upon which to compute benefits.

***

In * * * impairment of earnings claims, the claimant's or the
decedent's average weekly wage for the year preceding the
injury * * * is the weekly wage upon which compensation shall
be based. In ascertaining the average weekly wage for the year
previous to the injury * * * 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 * * *.

{¶ 9} "The average weekly wage is designed to 'find a fair basis for award for the
loss of future compensation.' " State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d
286, 287 (1990), quoting [State ex rel.] Riley v. Indus. Comm., 9 Ohio App.3d 71, 73 (10th
Dist.1983). As such, "the [AWW] should approximate the average amount that the
claimant would have received had he continued working after the injury as he had before
the injury." State ex rel. Erkard v. Indus. Comm., 55 Ohio App.3d 186, 188 (10th
Dist.1988).
{¶ 10} The standard formula for calculating the AWW "is to divide claimant's
earnings for the year preceding the injury by fifty-two weeks." State ex rel. Clark v. Indus.
Comm., 69 Ohio St.3d 563, 565 (1994). R.C. 4123.61 provides two exceptions to the
standard calculation: (1) unemployment due to causes "beyond the employee's control";
No. 20AP-161 4

and (2) the "special circumstances" provision. R.C. 4123.61; State ex rel. Mattscheck v.
Indus. Comm., 10th Dist. No. 12AP-255, 2013-Ohio-285, ¶ 4.
{¶ 11} The magistrate determined that the SHO applied "the first statutory
ground[] for deviation," and excluded "421 weeks from the standard computation because
[Berry's] period of unemployment was beyond her control." (Appended Mag. Decision at
¶ 53.) The magistrate further found the "SHO's ultimate factual determination" to be that
Berry was "prevented from working by reasons that would warrant applying a special
calculation to effect substantial justice." (Appended Mag. Decision at ¶ 57.) The
magistrate concluded that there was "some evidence to support the commission's decision
to depart from the standard AWW calculation in R.C. 4123.61 and apply the special-
circumstances exception to divide Berry's prior-year income only by the six weeks she
worked for Huntington." (Appended Mag. Decision at ¶ 59.)
{¶ 12} However, our review of the SHO's decision demonstrates the SHO applied
only the special circumstances exception in the present case. Although the SHO stated
that Berry was unemployed for 46 weeks in the year preceding her injury, the SHO never
concluded that Berry's unemployment during that period was due to causes beyond her
control. Compare State ex rel. Baker Concrete Constr., Inc. v. Indus. Comm., 102 Ohio
St.3d 149, 2004-Ohio-2114, ¶ 23 (stating that "the critical question" when applying the
unemployment-based exception from R.C. 4123.61 is "whether claimant's * * * weeks of
unemployment were actually beyond his control"). Periods of unemployment which are
not beyond the employee's control may nevertheless satisfy the special circumstances
exception in R.C. 4123.61. See State ex rel. Sutherland v. Indus. Comm., 10th Dist. No.
85AP-866 (Sept. 25, 1986) (holding that, although a period of unemployment due to
incarceration was not beyond the claimant's control, the period of incarceration was a
"special circumstance" under R.C. 4123.61).
{¶ 13} The SHO stated it was excluding 46 weeks from the AWW divisor "[i]n order
to do substantial justice" to Berry. While the unemployment-based exception in R.C.
4123.61 does not include a substantial justice component, the special circumstances
exception provides that the AWW may be calculated by "such method" as will accomplish
"substantial justice" when special circumstances are present. R.C. 4123.61. Accordingly,

1
See infra at ¶ 14.
No. 20AP-161 5

the SHO's order demonstrates the SHO found the special circumstances exception from
R.C. 4123.61 applicable.
{¶ 14} The magistrate's decision mistakenly states that the SHO excluded 42,
rather than 46, weeks from the AWW calculation. Accordingly, the magistrate's decision
is modified to reflect that the SHO applied the special circumstances exception to exclude
46 weeks from the standard AWW calculation.
{¶ 15} Huntington objects to the magistrate's decision, asserting the magistrate
erred by finding some evidence to support the commission's decision. Huntington
contends that there was no evidence to support the commission's finding that Berry was
unemployed in the year preceding her injury, as Berry testified only that she was
employed providing caregiving services to her mother-in-law throughout that time.
Huntington asserts that Berry's failure to present evidence to support her alleged
caregiving wages did not amount to proof of unemployment.
{¶ 16} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, the relator must show a clear legal right to the relief
sought and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967), paragraph one of the syllabus; State
ex rel. Elliot v. Indus. Comm., 26 Ohio St.3d 76, 78 (1986). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by some evidence. Elliot at 79, citing State ex
rel. Hutton v. Indus. Comm., 29 Ohio St.2d 9, 13 (1972).
{¶ 17} "The commission is the exclusive fact-finder with sole responsibility to
evaluate the weight and credibility of the evidence." State ex rel. Perez v. Indus. Comm.,
147 Ohio St.3d 383, 2016-Ohio-5084, ¶ 20, citing State ex rel. Burley v. Coil Packing,
Inc., 31 Ohio St.3d 18, 20-21 (1987). Thus, this court's role is limited to determining
whether there is some evidence in the record to support the commission's stated basis for
its decision. Id.
{¶ 18} Berry testified at the December 27, 2019 hearing that she was compensated
in various ways for providing caregiving services to her mother-in-law. Berry claimed
that her "rent was paid," a "check was issued to [her] for $1,000," and that she "withdrew
moneys totaling up to $700 from a bank machine." (Dec. 27, 2019 Hearing Tr. at 18.)
No. 20AP-161 6

However, Berry did not provide copies of the checks allegedly issued to her as payment
and she refused to produce her tax returns citing "privacy" concerns. (Dec. 27, 2019
Hearing Tr. at 17, 24.) Berry testified that she was looking for work throughout the
"[t]welve months" prior to her employment with Huntington, while also providing
caregiving services to her mother-in-law. (Dec. 27, 2019 Hearing Tr. at 22.)
{¶ 19} The SHO did not find Berry's testimony regarding her caregiving wages
credible. This court "cannot second guess the commission's judgments either as to
witness credibility or on the proper weight to accord particular evidence." State ex rel.
Welsh Ents., Inc. v. Indus. Comm., 10th Dist. No. 19AP-127, 2020-Ohio-2801, ¶ 26. "Part
of the commission's authority to weigh and evaluate evidence * * * is the freedom to reject
it as unpersuasive." State ex rel. Singleton v. Indus. Comm., 71 Ohio St.3d 117, 118 (1994).
{¶ 20} Once the commission rejected Berry's evidence regarding her caregiving
wages, the SHO could reasonably characterize Berry's situation during that time as
unemployment. See State ex rel. Hord v. Combs, 10th Dist. No. 04AP-617, 2005-Ohio-
1532, ¶ 14 (holding that "the use of the word 'wage' in R.C. 4123.61 constitutes monetary
remuneration by an employer for labor or services"); Rini v. Unemp. Comp. Bd. of Rev.,
9 Ohio App.3d 214, 215 (8th Dist.1983), fn. 1 (observing that, as the "essence of
employment is the receipt of wages or remuneration," the "performance of services
without being entitled to remuneration for those services is not employment, but
unemployment"). Accordingly, there was some evidence to support the commission's
finding that, in the year preceding her injury, Berry was unemployed but searching for
work while caring for an ill family member.
{¶ 21} Huntington fails to demonstrate that the commission abused its discretion
by applying the special circumstances exception in the present case. The special
circumstances exception in R.C. 4123.61 presents two questions: (1) did the claimant
demonstrate "special circumstances" so as to warrant a departure from the standard
AWW formula, and (2) if so, is the current AWW substantially just? Clark at 565. "When
special circumstances are established by the claimant, the commission has broad
discretion to choose a method for calculating the average weekly wage." State ex rel.
Valley Pontiac Co., Inc. v. Indus. Comm., 71 Ohio App.3d 388, 393 (10th Dist.1991).
No. 20AP-161 7

{¶ 22} "[T]he proximity of the claimant's date of injury to his reentry into the work
force" may "constitute[] a 'special circumstance' " under R.C. 4123.61. Clark at 565, citing
Riley. In Clark, the claimant was injured four weeks after re-entering the workforce,
following an extended absence from the workforce while she cared for her granddaughter.
The court concluded that such facts satisfied the R.C. 4123.61 "special circumstances"
exception. Clark at 565. Accord State ex rel. Huff v. Group Mgt. Servs., 10th Dist. No.
07AP-931, 2008-Ohio-6221, ¶ 16 (finding the claimant's "entry into the workforce ten
weeks prior to her injury constitute[d] a 'special circumstance' " under R.C. 4123.61).
Accordingly, the commission did not abuse its discretion by finding Berry's injury six
weeks after re-entering the workforce, following an absence from the workforce while
caring for an ill family member, to constitute a "special circumstance" under R.C. 4123.61.
{¶ 23} A recent entry into the workforce may "render[] the usual calculation unjust
and unrepresentative of the future wages lost as a result of the industrial injury." Huff at
¶ 12. The standard 52-week AWW calculation "presupposes the usual circumstance where
the claimant will have been employed at the beginning of the year and continues to be so
(but for justified interruptions) for the entire year." Riley at 72. In Riley, the claimant
"first became employed three weeks before his injury," and had not worked during the
remainder of the preceding year due to an independent financial arrangement. Id. at 73.
This court concluded that the commission arrived at an "unjust result" by utilizing the
relator's salary "for three weeks as that for the entire year." 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." Id. at 27.
Accord Sutherland (concluding that basing the AWW calculation "upon the bare facts of
[the claimant's] earnings [from four days of employment] over the year pr[e]ceding his
injury * * * result[ed] in a lopsided and unjust average weekly wage upon which to base
[the claimant's] benefits"); Valley Pontiac Co. at 393 (holding that averaging the
No. 20AP-161 8

claimant's "relatively small income earned in a seventeen-week period over an entire year
[would] simply not do substantial justice, nor is it a fair result"); State ex rel. Ohio State
Univ. Hosp. v. Indus. Comm., 118 Ohio St.3d 170, 2008-Ohio-1969, ¶ 17.
{¶ 25} The outcome Huntington advocates for in the present case, utilizing Berry's
6 weeks' worth of wages from Huntington as Berry's income for the entire year, would
result in a lopsided and unjust AWW calculation. Indeed, dividing Berry's $3,584.96
worth of income by 52 weeks would result in an AWW of $68.94; yet, Berry was earning
close to $600 a week while working for Huntington. The SHO's alternative AWW
calculation, which divided Berry's earnings from Huntington by the 6 weeks Berry worked
there, resulted in an AWW which fairly approximated the wages Berry would have
received had she continued working after her injury as she had before her injury.
Accordingly, the commission appropriately applied the special circumstances exception
from R.C. 4123.61 to arrive at an AWW which was substantially just. Huntington fails to
establish a clear legal right to relief in mandamus.
{¶ 26} On review of the magistrate's decision, an independent review of the record,
and due consideration of Huntington's objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law, with the modification
noted herein. We therefore overrule Huntington's objection to the magistrate's decision
and adopt the magistrate's modified decision as our own, including the findings of fact
and conclusions of law contained therein. Accordingly, the requested writ of mandamus
is hereby denied.
Objection overruled;
writ of mandamus denied.

KLATT and MENTEL, JJ., concur.
No. 20AP-161 9

APPENDIX

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Huntington Bancshares :
Incorporated,
:
Relator,
:
v. No. 20AP-161
:
Laura Berry et al., (REGULAR CALENDAR)
:
Respondents.
:

MAGISTRATE'S DECISION

Rendered on June 16, 2021

M. Soto Law Office, LLC, and Michael Soto, for relator.

Larrimer and Larrimer, and Thomas L. Reitz, for respondent
Laura Berry.

Dave Yost, Attorney General, and Denise A. Gary, for
respondent Industrial Commission of Ohio.

IN MANDAMUS AND
RESPONDENT'S MOTION TO RECONSIDER
PRIOR EVIDENTIARY RULING

{¶ 27} Relator, Huntington Bancshares Incorporated ("Huntington"), seeks a writ
of mandamus ordering respondent, Industrial Commission of Ohio ("commission"), to
vacate its order setting the average weekly wage ("AWW") used in computation of benefits
for respondent, Laura Berry, and enter a new order setting Berry's AWW at a lower figure
proposed by Huntington. The matter is presently before the magistrate both on the merits
and on respondent's motion to reconsider a prior evidentiary ruling by the magistrate.
No. 20AP-161 10

Findings of Fact:
{¶ 28} 1. Huntington is a self-insured employer participating in Ohio's workers'
compensation system.
{¶ 29} 2. Huntington hired Berry in a banking position on or about May 7, 2018.
(Stip. at 62.)
{¶ 30} 3. Berry's online application and accompanying resume outlined her work
history in finance-related positions and, more recently, as the owner of a handmade craft
company and freelance designer. (Stip. at 51-58.)
{¶ 31} 4. Berry sustained an injury on June 12, 2018 in the course of and arising
out of her employment with Huntington when she tripped and fell. (Stip. at 1.)
{¶ 32} 5. Berry's claim was allowed for right humeral shaft fracture. (Stip. at 35.)
{¶ 33} 6. Huntington paid wage continuation followed by temporary total
disability ("TTD") compensation. Pursuant to calculations provided by Huntington's
third-party administrator, Huntington established Berry's full weekly wage ("FWW") at
$692.40 and AWW at $68.94, based on assumptions regarding Berry's very low income
for the year preceding her injury, aside from her brief period of full employment with
Huntington. (Stip. at 2-5.)
{¶ 34} 7. Berry filed on April 5, 2019 a motion with the Ohio Bureau of Workers'
Compensation ("BWC") requesting that her AWW be set the same as her FWW, $692.40.
(Stip. at 7.) Berry supported the motion with evidence of earnings, principally an affidavit
dated March 30, 2019 in which Berry attested that she had engaged in caregiving services
for her mother-in-law between June 12, 2017 and May 7, 2018 (commencement of her
employment with Huntington) at a wage rate of $3,000.00 per month, and had also sold
crafts during this period with additional income of $4,664.80. (Stip. at 9.) The described
work as a caregiver did not appear on her resume and job application submitted to
Huntington in the hiring process. (Stip. at 51-58.)
{¶ 35} 8. Berry did not provide any further documentation to support her earnings
for caregiving services. (Stip. at 7-22.)
{¶ 36} 9. A district hearing officer ("DHO") heard the motion and by order dated
September 12, 2019 set Berry's AWW at $742.02. (Stip. at 24-25.) The DHO computed
this amount by adding the $35,000.00 Berry claimed for caregiving services in the year
No. 20AP-161 11

preceding her injury with the $3,584.91 Berry earned at Huntington before her injury, for
total wages of $38,584.91, giving the AWW of $742.02 when divided by 52. (Stip. at 24-
25.) The DHO declined to consider income reported by Berry for the sale of crafts because
Berry had not furnished corresponding expense information relating to the sales. (Stip.
at 24-25.)
{¶ 37} 10. Huntington filed an appeal from the DHO's order, and in connection
with this appeal requested a pre-hearing conference to address Berry's failure to provide
supporting documentation, such as tax returns, to substantiate her income as a caregiver.
The pre-hearing conference took place on October 30, 2019, attended by counsel for
Huntington, counsel for Berry, and Berry personally. The Columbus Hearing
Administrator conducted the hearing, and produced a compliance letter mailed
October 30, 2019 noting the results of the conference:
At the request of the Employer, a prehearing conference was
held on 10/24/2019. Present at the prehearing conference
were:

FOR THE INJURED WORKER: Mr. Larrimer, Ms. Berry
FOR THE EMPLOYER: Mr. Soto
FOR THE ADMINISTRATOR: No Appearance

The issue(s) addressed at the pre-hearing conference was
Discovery, Wages.

It is the finding of the Hearing Administrator that the
following provision(s) have been decided upon:

The Employer requested documentation of wages paid to the
Injured Worker reflected in the file as a stipend paid to the
Injured Worker for care provided as to the Injured Worker's
late Mother-in-law.

The Injured Worker indicated she did not have access to those
records.

At this time, the claim will be forwarded to docketing and a
hearing will be scheduled before a Staff Hearing Officer on the
issue of Average Weekly Wage/Full Weekly Wage and the
Employer's appeal, filed 09/30/2019, to the 09/17/2019
District Hearing Officer order.
No. 20AP-161 12

It is further the finding of the Hearing Administrator that the
parties must adhere to the provisions of this compliance
letter.

(Stip. at 33.)

{¶ 38} 11. A staff hearing officer ("SHO") heard Huntington's appeal on
December 27, 2019. Berry testified in detail regarding payments received from family
members for her nursing care for her mother-in-law. (Supp. Stip. at 92.) Berry testified
that she did not have copies of checks or other transactions through which she was paid,
including payment of her rent on her behalf by family members. (Supp. Stip. at 92.) Berry
further testified that she did not set forth her caregiving employment on her resume or
Huntington employment application because she considered this irrelevant to the
prospective employment. Berry specifically testified that she claimed the caregiving
earnings as income for tax purposes but refused to furnish documentary proof because
she believed it violated her privacy rights. (Supp. Stip. at 90.) In the course of the hearing,
the SHO stated that he would not consider an unsworn statement provided by Berry's
relatives and ultimately would not consider her caregiving income for lack of supporting
documentation.
{¶ 39} The SHO issued an order dated December 27, 2019 that vacated the DHO
order and set Berry's AWW at $597.48, computed by adding Berry's 6 weeks of wages
with Huntington and dividing by 6, rather than by 52 as the DHO had done. The SHO
supported this determination with the following explanation:
In order to do substantial justice to the Injured Worker as set
forth in R.C. 4123.61, the Staff Hearing Officer excludes 46
weeks from the calculation of the Injured Worker's average
weekly wage. The evidence indicates that during those 46
weeks, the Injured Worker was unemployed because she was
caring for an ill family member, but none the less continued
looking for full-time employment which she ultimately
secured with the Employer of Record.

(Stip. at 35-36.)
{¶ 40} 12. The commission refused Huntington's appeal from the SHO order by
decision mailed January 23, 2020, providing no developed reasoning or conclusions
other than absence of error in the SHO's order. (Stip. at 38.)
No. 20AP-161 13

{¶ 41} 13. Huntington sought reconsideration, for which the commission failed to
reach a majority decision due to recusal of two members. (Stip. at 84.)
{¶ 42} 14. Huntington filed its complaint in mandamus with this court on March
17, 2020.
{¶ 43} 15. The parties filed their stipulated evidence on June 22, 2020.
{¶ 44} 16. Huntington filed on June 22, 2020 a motion to supplement the
stipulated evidence with a transcript of the hearing before the SHO, which Huntington
had attempted to include in its subsequent motions before the commission but ultimately
failed to include.
{¶ 45} 17. By order dated June 23, 2020, the magistrate granted Huntington's
motion to supplement the evidence.
{¶ 46} 18. Berry moved for reconsideration of the magistrate's order admitting the
supplemental evidentiary materials on June 30, 2020, asserting that neither she nor the
commission had been given the opportunity to file memoranda in opposition to
Huntington's motion to supplement. The motion for reconsideration has not yet been
ruled upon by the magistrate.
Discussion and Conclusions of Law:
{¶ 47} The magistrate first considers Berry's motion to reconsider the magistrate's
prior evidentiary ruling allowing Huntington to supplement the record with a transcript
of the hearing before the SHO. Berry argues that this transcript was not submitted either
on appeal from the SHO's order to the commission or on application for reconsideration
of the commission's refusal to hear the appeal. Berry asserts that the hearing transcript
was not properly before the commission to consider as evidence and that the
commission's determination on appeal and refusal of reconsideration cannot be evaluated
in reliance on evidence that the commission did not have before it. Huntington argues to
the contrary that consideration of the transcript is proper in this mandamus action
because the operative order of the commission remains the SHO's order setting the AWW
and this court's review must include examination of the testimony upon which the SHO
relied. Given the procedural history of the matter before the commission, the magistrate
finds that Huntington's argument remains well-taken. The commission denied the appeal
without examination of the merits and denied a reconsideration on purely procedural
No. 20AP-161 14

grounds due to recusals by commissioners. Moreover, the argument that the operative
order is the one that must be examined in mandamus is consistent with the purpose of
mandamus: to examine the commission's proceedings and determination for an abuse of
discretion. The magistrate therefore maintains the prior evidentiary ruling allowing
supplementation of the record with a transcript of proceedings before the SHO.
{¶ 48} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, relator must show a clear legal right to the relief sought
and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On the other hand, where the record
contains some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
{¶ 49} Huntington asserts the commission abused its discretion when it applied a
limited and inapplicable exception to divide Berry's total earnings for the year prior to her
work-related injury by 6 weeks instead of 52. Huntington asserts that, once the SHO
rejected various claims of income from caregiving and craft sales, and limited her prior-
year income to 6 weeks of wages from Huntington, the AWW should have been calculated
on the basis of 52 work weeks, giving a much lower number.
{¶ 50} R.C. 4123.61 provides that "[t]he 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." The statute does not provide a
specific method of calculation by express reference to a 52-week divisor, but the
commission and courts have assumed that the 52-week calculation is the standard when
finding the "average" wage. State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 286-
87 (1990). Moreover, R.C. 4123.61 provides an exception that reinforces the presumption
of a 52-week norm:
No. 20AP-161 15

In ascertaining the average weekly wage for the year previous
to the injury * * * any period of unemployment due to
sickness, industrial depression, strike, lockout, or other cause
beyond the employee’s control shall be eliminated.

{¶ 51} In addition to the above adjustment for periods of involuntary
unemployment, the statute further provides a fairness-based opportunity for deviation
from the standard computation:
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.

{¶ 52} This court has stated that application of the special-circumstances
exception in R.C. 4123.61 has "generally been confined to uncommon situations involving
the claimant's age, education, and background." State ex rel. Howard v. Indus. Comm.,
10th Dist. No. 08AP-129, 2008-Ohio-5616, ¶ 7, citing Wireman at 288. The claimant
bears the burden of submitting corroborating evidence of wages received to support an
adjustment to AWW. State ex rel. Baker v. Indus. Comm., 86 Ohio St.3d 575 (1999);
State ex rel. Tyler v. Indus. Comm., 10th Dist. No. 03AP-836, 2004-Ohio-2818; State ex
rel. Kidwell v. Indus. Comm., 10th Dist. No. 02AP-940, 2003-Ohio-4509.
{¶ 53} The SHO in this case concluded that Berry should benefit from the exclusion
of 42 weeks from the standard computation because her period of unemployment was
beyond her control, thereby applying the first statutory grounds for deviation:
The evidence indicates that during those 46 weeks, the
Injured Worker was unemployed because she was caring for
an ill family member, but none the less continued looking for
full-time employment which she ultimately secured with the
employer of record.

(Stip. at 35.)
No. 20AP-161 16

{¶ 54} Huntington points out that this conclusion was not based on any evidence
before the SHO, because the thrust of Berry's application for recalculation of her AWW
was that she had, in fact, income beyond her Huntington wages to be used in a 52-week
computation. Once the SHO rejected this income for lack of documentation, there was
no evidence upon which the SHO could grant the motion on the basis submitted by Berry.
{¶ 55} Ohio courts have interpreted the exceptions under R.C. 4123.61 as
presenting two distinct grounds for deviation and calculation of the AWW: forced
unemployment, and special circumstances. State ex rel. Huff v. Group Mgt. Serv., 10th
Dist. No. 07AP-931, 2008-Ohio-6221, ¶ 10. Recent entry into the workforce can be a
special circumstance rendering the typical 52-week divisor unjust and unrepresentative
of the future wages lost as a result of workplace injury. Id. at ¶ 12. This court has also
held that part-time work in the year prior to the date of injury can also constitute a special
circumstance. State ex rel. Mattscheck v. Indus. Comm., 10th Dist. No. 12AP-255, 2013-
Ohio-285.
{¶ 56} Huff, in particular, stressed that the emphasis in reaching a substantially
just calculation of AWW must be upon reaching accurate determination of future earnings
lost due to workplace injury. Huff at 12. Huff involved a claimant who worked for the
responsible employer for approximately ten weeks, after a period of staying home to care
for her children. The claimant in Huff successfully argued that 42 weeks of the prior year
should be excluded from calculation of her AWW. In declining to grant a writ, this court
found no abuse of discretion in the commission's exclusion of 42 weeks from the
calculation, based on special circumstances. Id. at ¶ 10. See also, State ex rel. Riley v.
Indus. Comm., 9 Ohio App.3d 71 (1983) (10th Dist.). (Claimant injured after three weeks
on new job should not see AWW set by division into 52 weeks.) The Supreme Court of
Ohio has also preferred the forward-looking emphasis in AWW, noting that a claimant
who worked three weeks before the date of injury could benefit from a special-
circumstances determination on AWW. State ex rel. Ohio State Univ. Hosp. v. Indus.
Comm., 118 Ohio St.3d 170, 2008-Ohio-1969.
{¶ 57} Examination of these cases makes clear that the commission would not have
committed an abuse of discretion had Berry presented her case from the outset along lines
that conformed with the SHO's ultimate factual determination that Berry was (1) unable
No. 20AP-161 17

to work for 46 weeks of the preceding year, and (2) prevented from working by reasons
that would warrant applying a special calculation to effect substantial justice. Huntington
further points out that the SHO's statement that Berry was unemployed because she was
caring for an ill family member, but continued to look for full-time employment during
this period, is entirely fanciful and supported by no assertion, evidence, or argument from
Berry at any point in the proceedings.
{¶ 58} The question before this court, therefore, is whether the commission,
having disregarded Berry's primary line of argument, nonetheless had discretion to
examine those aspects of the evidence that the commission found credible, and based
thereon depart from the standard calculation of AWW. In sum, Huntington argues that
the non-credible grounds asserted by Berry would preclude any other grounds invoked by
the commission upon that portion of the evidence that the commission did find credible.
{¶ 59} In the final analysis, it is difficult to find that the commission abused its
discretion when it attempted to comply with Huff, Riley, Mattscheck, and Ohio State
University Hospital in departing from the standard AWW calculation to provide
substantial justice to the claimant by applying a forward-looking emphasis on the lost
wages. The commission could have, but did not, disregard various testimony that she was
caring for her mother-in-law for most of the year, even when the commission disregarded
the adjunct testimony that Berry was paid to do so. While Huntington objects to what it
views as factual distortion in the application process leading to an excessive AWW
computation in favor of the claimant, the commission is not obligated to punish a party
for non-credible evidence, and may reach its result based on the evidence it finds credible
and the proper application of law. The magistrate finds that there is some evidence to
support the commission's decision to depart from the standard AWW calculation in R.C.
4123.61 and apply the special-circumstances exception to divide Berry's prior-year
income only by the six weeks she worked for Huntington, which generated the entirety of
that income. It is accordingly the decision and recommendation of the magistrate that
the court deny the requested writ of mandamus.

/S/ MAGISTRATE
MARTIN L. DAVIS
No. 20AP-161 18

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).