dissenting.
{¶ 43} Not only do I dissent from the majority’s clear disregard of the express statutory cap found in former R.C. 4123.58 applicable to the claimant in the case at bar, 132 Ohio Laws, Part I, 1420, but I would also overrule State ex rel. Lemke v. Brush Wellman, Inc. (1998), 84 Ohio St.3d 161, 702 N.E.2d 420. Irrespective of the disposition of this cause, however, I strongly urge the General Assembly to review and revise the workers’ compensation law applicable to PTD claimants like Price.
{¶ 44} R.C. 4123.58, as in effect both in 1969 when Price was injured, as well as in 1997 when he ceased working, provided a formula for determining the amount of a claimant’s PTD benefits. 132 Ohio Laws, Part I, 1420. At both times the statute provided that PTD benefits are to be calculated according to a mathematical formula using a claimant’s AWW as the starting point.
{¶ 45} Price applied for, and received, temporary total disability compensation shortly after his accident. His AWW was calculated to be $56 at that time. Price did not object to that determination, nor did he urge that special circumstances existed making an AWW of $56 unjust.
{¶ 46} Over 20 years later, at a time when he was receiving Social Security disability benefits totaling $1,114 per month, Price requested that the Bureau of *255Workers’ Compensation adjust his AWW upward, citing Lemke. Inherent in his request was the premise that the “special circumstances” language in the last paragraph of R.C. 4123.61 allows the bureau to revise an established AWW.
{¶ 47} However, the workers’ compensation statutes do not provide for the revision of an established AWW. There simply is no statutory authority for the commission to do so. Only the precedent established in Lemke provides authority for such revision.
{¶ 48} I joined the majority in Lemke. However, the case before us illustrates Lemke’s impracticality within the context of the highly integrated workers’ compensation statutory structure. Despite our good intention to accomplish a fairer result for Lemke than the statutory scheme provided, it is now clear that we exceeded our proper judicial role and unwisely engaged in legislative rewriting of the workers’ compensation law. We should correct our mistake and turn off the flow of unintended consequences produced by Lemke.
{¶ 49} The majority holds that “Price’s PTD award is subject to the statutory provisions of R.C. 4123.58 in effect on the date that his injury forced him from the job market.” Specifically, the majority holds that the statutory cap found in R.C. 4123.58 as in effect in 1998, i.e, an amount “equal to sixty-six and two-thirds per cent of the statewide average weekly wage as defined in division (C) of section 4123.62,” applies to Price’s claim rather than the $56 per week statutory cap in effect in 1969 on the date of his injury. See 132 Ohio Laws, Part I, 1420. It reaches this result on the basis of its conclusion that to follow the statutes as written “would undermine the purpose of R.C. 4123.61.”
{¶ 50} In so doing the majority disregards a clear line of precedent that “ ‘the benefits payable in a compensation claim are those in effect at the time of the injury.’ ” (Emphasis added.) Thompson v. Indus. Comm. (1982), 1 Ohio St.3d 244, 250, 1 OBR 265, 438 N.E.2d 1167, quoting Young, Workmen’s Compensation Law of Ohio (2d Ed.1971) 313, Section 20.1. The “ ‘statutory law in force upon the date the cause of action accrues is the measure of the right, and is not subject to enlargement or diminishment by the Industrial Commission or the courts at any time.’ ” Id, quoting Indus. Comm. v. Kamrath (1928), 118 Ohio St. 1, 4, 160 N.E. 470. See, also, State ex rel. Schmersal v. Indus. Comm. (1944), 142 Ohio St. 477, 478, 27 O.O. 404, 52 N.E.2d 863 (“ ‘The cause of action of an injured employee accrues at the time he receives an injury in the course of his employment,’ ” quoting Kamrath, supra, at paragraph three of the syllabus). This court is duty-bound to apply this precedent, and accordingly we should hold that the version of R.C. 4123.58 in effect on the date of an industrial injury applies in determining the maximum PTD compensation due a claimant.
{¶ 51} R.C. 4123.61, and specifically the “special circumstances” language found in the last paragraph of that statute, is relevant solely to a determination of *256AWW (“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” [emphasis added]). R.C. 4123.61 does not expressly or impliedly authorize the administrator to override other sections of the workers’ compensation law, such as the statutory cap found in R.C. 4123.58, based on a determination that “special circumstances” exist. To read the statute in this way, as the majority does, broadens the administrator’s discretion in determining the amount of a claimant’s workers’ compensation to such an extent that the statutory benefit formula becomes merely advisory.
{¶ 52} The rule of law that workers’ compensation benefits are determined according to the law in place at the time of injury has long been recognized as causing inequitable results, particularly in the case of claimants whose injuries take many years to evolve into permanent disability. See Thompson, 1 Ohio St.3d at 250-251, 1 OBR 265, 438 N.E.2d 1167, and fn. 6. It is also true that PTD benefits are designed to compensate for future economic loss. With some exceptions, the weekly rate derives from the AWW, which, in turn, “is designed to ‘find a fair basis for award for the loss of future compensation.’ ” State ex rel. Wireman v. Indus. Comm. (1990), 49 Ohio St.3d 286, 287, 551 N.E.2d 1265, quoting State ex rel. Riley v. Indus. Comm. (1983), 9 Ohio App.3d 71, 73, 9 OBR 90, 458 N.E.2d 428. Ideally, the PTD rate would reflect the amount of anticipated future losses. Unfortunately, it does not always operate in this manner because the General Assembly has not provided a mechanism to annually adjust the claimant’s PTD rate to reflect increases in the cost of living. As a result, claimants injured years ago receive compensation that might well be described as inadequate by today’s standards. The problem is most acute for claimants injured before 1974, such as Price, whose compensation is limited by the very low PTD caps then in effect.
{¶ 53} It is critical to remember, however, that regardless of the date of injury, every PTD claimant who receives PTD compensation for many years will eventually have a compensation rate that seems unacceptably low. It is not, therefore, a problem that affects only a declining number of claimants injured before 1974. Increasing an admittedly low rate for one claimant — no matter how well intentioned — ultimately opens the door to all PTD claimants who believe that their rate is too low, i.e., that their workers’ compensation is no longer “fair” because of the impact of inflation over time.
{¶ 54} Lemke was decided in light of this unfortunate background. Galen Lemke was diagnosed with an occupational disease (not an occupational injury) in 1970. Despite the effects of his disease, he worked until his deteriorating *257condition forced him from work in 1990. PTD benefits were awarded that same year.
{¶ 55} Like Price, Lemke’s PTD rate was based on an AWW figure that was over 20 years old when he applied for PTD benefits. Lemke objected to the commission’s calculation of his AWW and PTD compensation, contending that the rate did not fairly reflect the future earnings he would lose. He proposed instead that his AWW be based on his earnings from the year preceding the year of his last day at work. This court agreed and ordered the AWW adjusted pursuant to the “special circumstances” provision of R.C. 4123.61.
{¶ 56} The court found special circumstances within the scope of this statutory provision in that the PTD rate derived from Lemke’s date-of-onset AWW was inadequate at the time of his application for PTD compensation 20 years later, as a result of the passage of time and the impact of inflation. We affirmed a writ of mandamus granted by the court of appeals that ordered the commission “to incorporate in its AWW calculation Lemke’s earnings for the year before he could no longer work,” and to recompute his PTD. Lemke, 84 Ohio St.3d at 164, 702 N.E.2d 420.
{¶ 57} Lemke constituted an attempt to address what, as we have observed above, may well be considered a major flaw in the statutory scheme provided for the workers’ compensation system. Lemke’s situation prompted a sympathetic response: his PTD rate was unconscionably low, and even his employer encouraged upward adjustment. But in relying on the “special circumstances” exception, Lemke inadvertently opened the door to every claimant whose PTD compensation has not kept pace with increases in the cost of living.
{¶ 58} Both the Industrial Commission and the court of appeals relied upon Lemke in ordering that Price’s AWW be adjusted upward by using his earnings in the year prior to his application for PTD benefits to calculate his AWW. However, the reasoning in Lemke is flawed, and this court should overrule it.
{¶ 59} Lemke has three key flaws: (1) it improperly found the existence of special circumstances justifying an upward adjustment of the AWW pursuant to R.C. 4123.61, (2) it failed to recognize the statutory cap provided by R.C. 4123.58, and (3) it unsuccessfully attempted to distinguish the case on its facts.
{¶ 60} The special-circumstances provision of R.C. 4123.61 is, by its terms, triggered by an inability to justly determine the AWW by traditional means. Crucial to proper application, however, is this: merely because an AWW later seems unjust does not mean that it was unjust when initially set — the only situation to which the provision relates. However, Lemke received a 1972 permanent partial disability award without objection based on the same AWW he later challenged. When Lemke’s AWW was determined in 1972, there was no *258allegation that the AWW was unjust. It was only years later that the AWW appeared inadequate.
{¶ 61} We cited several cases interpreting R.C. 4123.61 as authority in Lemke, including State ex rel. Clark v. Indus. Comm. (1994), 69 Ohio St.3d 563, 634 N.E.2d 1014, Wireman, 49 Ohio St.3d 286, 551 N.E.2d 1265, and Riley v. Indus. Comm. (1983), 9 Ohio App.3d 71, 9 OBR 90, 458 N.E.2d 428. All of these cases involved claimants who challenged the AWW that was set in response to their initial request for compensation. None involved a situation such as this one, where a claimant’s AWW is calculated, without objection, in an amount that, years later, becomes inadequate due to inflation. The Lemke court’s interpretation of R.C. 4123.61 to allow an adjustment to a previously determined AWW was unprecedented. To the contrary, the law prior to Lemke is consistent with the conclusion that once an AWW is determined, and compensation is accepted without objection consistent with that AWW, a later allegation of unjust determination cannot succeed.
{¶ 62} Application of the special-circumstances provision is precluded for another reason. A finding of special circumstances is generally confined to “uncommon situations.” Wireman, 49 Ohio St.3d at 287, 551 N.E.2d 1265. As mentioned earlier, an AWW rendered economically inadequate by passing years is not rare.
{¶ 63} Accordingly, the special-circumstances provision of R.C. 4123.61 should not have been applied in Lemke. Nor is it applicable in the case at bar, as Price received substantial temporary total disability compensation immediately following his injury with no allegation at that time that the amount of his AWW was unjust.
{¶ 64} Lemke’s second significant flaw is its failure to discuss the cap on the amount of PTD benefits contained in the PTD statutes. The case at bar brings this flaw into full focus. When Lemke’s occupational disease was first diagnosed in 1970, former R.C. 4123.58 awarded PTD at two-thirds of the AWW, not to exceed a statutory maximum of $56 per week. 132 Ohio Laws, Part I, 1420. To the extent that our decision in Lemke ordered a calculation of Lemke’s PTD based on his 1996 AWW, without regard to any statutory maximum that existed when his AWW was originally set, that order violated the statutory cap provided by the version of R.C. 4123.58 applicable to him.
{¶ 65} Finally, Lemke is problematic because this court’s two attempts to distinguish the case on its facts do not withstand scrutiny. Its emphasis on the fact that the case involved an occupational disease and not an injury is irrelevant from a special-circumstances perspective. Id., 84 Ohio St.3d at 164, 702 N.E.2d 420. As the court of appeals in this case observed, a “special circumstances” deviation from the standard AWW formula is not limited to occupational disease *259claimants. If a rate is unsustainable for someone with an occupational disease, it is unsustainable for someone with an industrial injury.
Kearns Co., L.P.A., and Michael A. Kearns, for appellee. Betty D. Montgomery, Attorney General, and Gerald H. Waterman, Assistant Attorney General, for appellants.{¶ 66} Nor does the fact that Lemke persisted in working long after his diagnosis provide a valid distinction. The court wrote that “[a]n 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.” Id., 84 Ohio St.3d at 164, 702 N.E.2d 420. There is, however, no substantive reason why Lemke’s situation was more deserving of a rate increase than a claimant so severely disabled from the outset that the chance to persevere was immediately and permanently foreclosed.
{¶ 67} Consequently, Lemke’s inference that an AWW may be recalculated to achieve a “fair” benefit amount has inadvertently become both an invitation and precedent for all claimants who believe that the amount of their compensation has become insufficient over time. This almost certainly will have significant negative implications for the State Insurance Fund.
{¶ 68} Relief is available to some workers receiving PTD subject to pre-1974 statutory caps. Qualified recipients of PTD compensation lower than the amount fixed in R.C. 4123.412 may receive benefits from the Disabled Workers’ Relief Fund (“DWRF”) established by R.C. 4123.411 et seq. Fulton notes in his treatise that the General Assembly created the DWRF subsidy based upon the recognition that “a large number of permanently and totally disabled claimants were receiving low levels of compensation, because benefits payable in a compensation claim are limited to those in effect at the time of injury, and inflation tended to victimize the recipients of such continuing benefits.” Fulton, supra, at 318, Chapter 10.6. A PTD compensation recipient qualifies for a DWRF benefit if his workers’ compensation benefit, when combined with Social Security Act disability payments, falls below a statutorily mandated minimum amount. R.C. 4123.412. That amount as relevant to Price was $342 a month. However, Price’s monthly Social Security benefit was $1,114 at the time of his application for PTD.
{¶ 69} I therefore would overrule Lemke, while strongly urging the General Assembly to again consider the impact of current law on workers’ compensation recipients in Price’s position. The problem of inflexible PTD rates should be addressed and resolved by the legislative branch of government — not by this court.
Lundberg Stratton, J., concurs in the foregoing dissenting opinion.