[Cite as State ex rel. Lott v. Indus. Comm. of Ohio, 2023-Ohio-3554.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jason C. Lott, :
Relator, : No. 21AP-552
v. : (REGULAR CALENDAR)
Industrial Commission of Ohio et al., :
Respondents. :
D E C I S I O N
Rendered on September 29, 2023
On brief: Hochman & Plunkett Co., L.P.A., Gary D.
Plunkett, Emily A. Port, and Marcus A. Heath, for relator.
On brief: Dave Yost, Attorney General, and David Canale,
for respondent Industrial Commission of Ohio.
IN MANDAMUS
ON OBJECTIONS TO THE MAGISTRATE’S DECISION
LUPER SCHUSTER, J.
{¶ 1} Relator, Jason C. Lott, initiated this original action requesting this court
issue a writ of mandamus ordering respondent Industrial Commission of Ohio
(“commission”) to vacate its order denying Lott’s request to have his average weekly wage
(“AWW”) set at $546.44.
{¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this court referred the matter to a magistrate. The magistrate issued the
appended decision, including findings of fact and conclusions of law. The magistrate
determined the commission did not abuse its discretion in declining to exclude Lott’s 32-
week period of post-incarceration classes from its calculation of Lott’s AWW. However,
the magistrate found the commission abused its discretion in not considering whether
No. 21AP-552 2
Lott’s one-week period of incarceration amounted to special circumstances that would
require a deviation from the standard formula for the AWW. Thus, the magistrate
recommends we issue a limited writ of mandamus returning the matter to the commission
to vacate the staff hearing officer (“SHO”) order with respect to the determination of
special circumstances and to issue a new order addressing whether Lott’s one-week period
of incarceration constitutes special circumstances.
{¶ 3} The commission filed objections to the magistrate’s decision. Therefore, we
must independently review the decision to ascertain whether “the magistrate has properly
determined the factual issues and appropriately applied the law.” Civ.R. 53(D)(4)(d). The
commission does not challenge the magistrate’s recitation of the pertinent facts; however,
the commission objects to the magistrate’s conclusion that Lott is entitled to a limited writ
of mandamus. More specifically, the commission sets forth the following objections:
1. The magistrate improperly re-weighed the evidence before
the commission in finding that the commission’s exclusion of a
32-week period of post-incarceration was proper, due to
insufficient evidence, whilst shifting the burden of proof to the
commission, and finding that the commission’s decision not to
exclude a one-week period of incarceration, based upon the
same evidence, was an abuse of discretion[.]
2. The commission objects to the magistrate’s finding that a
limited writ should be issued returning this to the commission
to determine whether the period of incarceration should be
considered a “special circumstance” as incarceration should
not qualify as a special circumstance[.]
(Emphasis sic.)
{¶ 4} A brief summary of the factual circumstances is pertinent to our discussion.
As set forth more fully in the magistrate’s decision, Lott sustained a work-related injury in
January 2021, and the Ohio Bureau of Workers’ Compensation (“BWC”) issued an order
granting total temporary disability (“TTD”) and setting Lott’s AWW at $197.01. The BWC
calculated Lott’s AWW based on Lott’s 15 weeks of earnings prior to his injury totaling
$10,244.67 and dividing the earnings by 52 weeks. Lott then filed a motion requesting his
AWW be set at $546.44, asserting that 37 weeks should be excluded from BWC’s
calculation. In particular, Lott asserts he was unemployed for 4 weeks, was incarcerated
No. 21AP-552 3
for 1 week, and, subsequent to his incarceration, was participating in required adult anger
management classes and drug and alcohol programs (“rehabilitation programs”) for 32
weeks. Lott argued his 4 weeks of unemployment was due to a cause beyond his control
and that his time spent in prison and his subsequent participation in the rehabilitation
programs should constitute special circumstances justifying a change in the calculation of
his AWW.
{¶ 5} A district hearing officer (“DHO”) issued an order finding Lott’s 4 weeks of
unemployment should be excluded from the AWW calculation but that the 33 weeks of
Lott’s incarceration and his subsequent required participation in the rehabilitation
programs should not be excluded from the AWW calculation. Lott appealed the DHO’s
order, and a SHO then issued an order setting Lott’s AWW at $213.43. The SHO calculated
the AWW based upon Lott’s $10,244.67 in wages in the 52 weeks prior to the injury and
dividing that number by 48 weeks of employment, thus excluding Lott’s 4 weeks of
unemployment from the AWW calculation. The SHO did not, however, exclude Lott’s 1
week of incarceration and 32 weeks of post-incarceration rehabilitation programs from the
AWW calculation, finding this period was within Lott’s control and does not constitute
special circumstances requiring exclusion from the standard wage calculation. Lott
appealed the SHO’s order, and the commission refused Lott’s appeal. This instant action
in mandamus followed.
{¶ 6} To be entitled to a writ of mandamus, Lott 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, 78-79 (1986). But when 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, 58 (1987).
{¶ 7} The dispute here relates to the commission’s calculation of Lott’s AWW.
R.C. 4123.61 governs the calculation of AWW and provides, as relevant here,
compensation shall be based on the claimant’s AWW “for the year preceding the injury,”
No. 21AP-552 4
but expressly stating “any period of unemployment due to sickness, industrial depression,
strike, lockout, or other cause beyond the employee’s control shall be eliminated.” Further,
“[i]n cases where there are special circumstances under which the [AWW] cannot justly be
determined by applying this section, the administrator of workers’ compensation, in
determining the [AWW] in such cases, shall use such method as will enable the
administrator to do substantial justice to the claimants.” R.C. 4123.61.
{¶ 8} “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. Huntingon
Bancshares, Inc. v. Berry, 10th Dist. No. 20AP-161, 2022-Ohio-531, ¶ 10, quoting State ex
rel. Clark v. Indus. Comm., 69 Ohio St.3d 563, 565 (1994). However, there are two
exceptions to the standard calculation: (1) unemployment based on a cause “beyond the
[claimant’s] control”; and (2) the “special circumstances” provision. Id. at ¶ 10, citing R.C.
4123.61, and State ex rel. Mattscheck v. Indus. Comm., 10th Dist. No. 12AP-255, 2013-
Ohio-285, ¶ 4.
{¶ 9} The issue in Lott’s petition for a writ of mandamus is the 33 weeks related to
Lott’s incarceration and subsequent participation in rehabilitation programs. Lott relied
on State ex rel. Sutherland v. Indus. Comm., 10th Dist. No. 85AP-866, 1986 Ohio App.
LEXIS 8430 (Sept. 25, 1986), for the proposition that incarceration is a special
circumstance within the meaning of R.C. 4123.61 requiring an alternative calculation of
AWW. The magistrate determined the SHO appropriately concluded both Lott’s 1-week
incarceration and his 32-week participation in rehabilitation programs were not causes
beyond Lott’s control and thus did not qualify for the first exception to the standard
calculation of AWW. As to the “special circumstances” provision of R.C. 4123.61, however,
the magistrate concluded the SHO should have separately considered the 1-week period of
incarceration and the 32-week period of participation in rehabilitation programs from the
AWW calculation. Though the magistrate found the commission did not abuse its
discretion in excluding the 32-week period of participation in rehabilitation programs as
“special circumstances” because Lott did not provide specific information about the
rehabilitation programs and whether his participation in the programs necessarily barred
him from employment during his period of participation, the magistrate nonetheless
found the commission abused its discretion in failing to explain why the 1-week period of
No. 21AP-552 5
incarceration did not constitute a special circumstance. Thus, the magistrate recommends
this court issue a limited writ returning the matter to the commission to address whether
Lott’s 1-week period of incarceration constituted special circumstances and, if so, whether
a different method of calculation of AWW is required to do substantial justice to Lott.
{¶ 10} For ease of discussion we take the commission’s objections out of order. In
its second objection, the commission argues the magistrate erred because incarceration
should not qualify as a special circumstance. We disagree. The magistrate found,
correctly, that incarceration can be a special circumstance within the meaning of R.C.
4123.61. See Sutherland (finding the commission “abused its discretion by failing to
properly calculate relator’s [AWW] in an alternative manner justified by the special
circumstance of relator’s incarceration”); State ex rel. Exel Logistics v. Indus. Comm., 10th
Dist. No. 03AP-456, 2004-Ohio-3594, ¶ 3 (“a period of incarceration may be considered a
special circumstance so that the [AWW] needs to be calculated by the use of the alternative
method of computing such wages”). Thus, we overrule the commission’s second objection
to the magistrate’s decision.
{¶ 11} Through its first objection, the commission asserts the magistrate erred in
determining the commission abused its discretion by refusing to recognize Lott’s one-week
period of incarceration as a special circumstance justifying an alternative calculation of
AWW. We agree with the commission.
{¶ 12} Although the magistrate correctly determined that incarceration can be a
special circumstance within the meaning of R.C. 4123.61, we are mindful that deviating
from the standard calculation for AWW based on special circumstances requires two
preconditions: (1) that special circumstances exist, and (2) that AWW cannot be justly
determined by application of the usual standard. State ex rel. Clark v. Indus. Comm., 69
Ohio St.3d 563, 565 (1994). Accordingly, the presence of special circumstances, alone,
does not compel deviation from the standard calculation of the AWW. There must also be
a finding that, given the presence of the special circumstances, application of the usual
standard would not justly determine the AWW.
{¶ 13} Though the magistrate found the SHO failed to explain why the 1-week
period of incarceration did not amount to special circumstances, we disagree with the
magistrate’s characterization of the SHO’s order. In the May 22, 2021 order, the SHO
No. 21AP-552 6
expressly found the 33-week period of incarceration and participation in rehabilitation
programs “does not constitute a special circumstance requiring exclusion from the wage
setting.” (Emphasis added.) (May 22, 2021 SHO Order at 2.) Thus, the SHO did not find
that the 1-week period of incarceration did not constitute special circumstances. Instead,
the SHO found the 1-week period of incarceration did not constitute special circumstances
that would require deviating from the standard calculation of AWW.
{¶ 14} Further, a deviation from the standard calculation of AWW based on special
circumstances “ ‘is designed to do substantial justice to the claimant for payment of the
loss of future compensation’ ” but is “ ‘to be used only in circumstances where the
application of the usual rule would lead to a grossly unfair result.’ ” State ex rel. Howell v.
Indus. Comm., 10th Dist. No. 05AP-788, 2006-Ohio-3655, ¶ 36, quoting State ex rel.
Cooper v. Indus. Comm., 10th Dist. No. 04AP-706, 2005-Ohio-3099, ¶ 6. See also State
ex rel. Tantarelli v. Decapua Ents., Inc., 10th Dist. No. 16AP-700, 2017-Ohio-5603, ¶ 9,
quoting State ex rel. Cawthorn v. Indus. Comm., 78 Ohio St.3d 112, 114 (1997) (the
standard calculation of AWW “ ‘is to be used in all but the most exceptional cases’ ”). After
excluding the four weeks of unemployment, the SHO applied the standard calculation of
the AWW and divided Lott’s $10,244.67 by 48 weeks, resulting in an AWW of $213.43.
The magistrate found, and we agree, that the SHO did not abuse its discretion in refusing
to exclude the 32-weeks of rehabilitation programs from the calculation. At most,
excluding the remaining 1-week period of incarceration would result in an AWW
calculation of $217.97, or $4.48 more than the AWW ordered by the SHO. This is not the
type of “gross unfairness” sufficient to invoke a deviation from the standard calculation
based on special circumstances. Cooper at ¶ 8.
{¶ 15} Where a claimant believes the standard calculation of AWW should not
apply, the burden is on the claimant to demonstrate one of the exceptions in R.C. 4123.61
applies. State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 286, 289 (1990) (“[i]f the
claimant believes that fifty-two weeks is an inaccurate denominator, it is the claimant’s
burden to so demonstrate. The commission is not required to disprove the allegation”).
Based on this record, the commission did not abuse its discretion in determining Lott did
not demonstrate that his 1-week period of incarceration established special circumstances
justifying a departure from the standard calculation of AWW. Therefore, Lott cannot
No. 21AP-552 7
establish a clear legal right to relief in mandamus, and we sustain the commission’s first
objection to the magistrate’s decision.
{¶ 16} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate erred in determining Lott is entitled to a limited writ of mandamus.
Accordingly, we adopt the magistrate’s findings of fact but not the conclusions of law. We
therefore sustain the commission’s first objection to the magistrate’s decision and overrule
the commission’s second objection to the magistrate’s decision, and we deny Lott’s request
for a writ of mandamus.
Objections sustained in part and overruled in part;
writ of mandamus denied.
MENTEL and EDELSTEIN, JJ., concur.
No. 21AP-552 8
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Jason C. Lott, :
Relator, :
v. : No. 21AP-552
Industrial Commission of Ohio et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on December 12, 2022
Hochman & Plunkett Co., L.P.A., Gary D. Plunkett, Emily A.
Port, and Marcus A. Heath, for relator.
Dave Yost, Attorney General, and David Canale, for
respondent Industrial Commission of Ohio.
____
IN MANDAMUS
{¶ 17} Relator, Jason C. Lott ("claimant"), has filed this original action requesting
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order that denied his motion requesting that his average
weekly wage ("AWW") be set at $546.44.
Findings of Fact:
{¶ 18} 1. Claimant sustained a work-related injury on January 26, 2021, through
his employment with respondent CPG International, L.L.C. ("employer"), and his workers'
compensation claim was allowed for nondisplaced fracture of lateral malleolus of right
fibula.
No. 21AP-552 9
{¶ 19} 2. On March 8, 2021, the Ohio Bureau of Workers' Compensation ("BWC")
issued an order granting total temporary disability ("TTD") and setting claimant's full
weekly wage at $881.59 and his average weekly wage ("AWW") at $197.01. The BWC
calculated the wages based on claimant's 15 weeks of earnings prior to his injury totaling
$10,244.67 and dividing the earnings by 52 weeks.
{¶ 20} 3. In his March 10, 2021, motion, claimant requested his AWW be set at
$546.44. Claimant asserted that 37 weeks should be excluded from the calculation. The 37
weeks was comprised of the following: (1) 4 weeks during which he was unemployed and
looking for work; and (2) 33 weeks during which he was incarcerated (1 week) and
subsequently required to participate in adult anger management classes and drug and
alcohol programs (32 weeks) before he could re-enter the workforce.
{¶ 21} 4. In his March 10, 2021, wage affidavit, claimant averred that:
From 1-26-20 to 2-3-20, I was in prison. Upon my release,
and so I could reintegrate into the workforce, I had to attend
drug and alcohol rehabilitation classes, and adult anger
management classes. I attended these classes and
completed these programs from 2-3-20 to approximately 9-
13-20 when was able to find work from Staffmark. Due to
the special circumstances of time spent in prison and
subsequent participation in classes and programs so I could
rehabilitate and re-enter the workforce, I request 33 weeks
be excluded from the average weekly wage calculation.
{¶ 22} 5. On April 5, 2021, a district hearing officer ("DHO") held a hearing on
claimant's motion. On April 9, 2021, the DHO issued an order, finding the following:
(1) the 4 weeks claimant was unemployed should be excluded from the AWW calculation;
and (2) the 33 weeks claimant was incarcerated and was required to participate in anger
management classes and drug and alcohol programs should not be excluded from the
AWW calculation because they were not special circumstances beyond claimant's control.
Claimant and the employer appealed. Claimant indicated in his appeal that additional
evidence would not be submitted.
{¶ 23} 6. On May 17, 2021, a staff hearing officer ("SHO") held a hearing on
claimant's appeal. On May 22, 2021, the SHO issued an order, finding the following: (1) the
AWW is set at $213.43, based upon wages of $10,244.67 in the 52 weeks prior to the injury,
No. 21AP-552 10
divided by 48 weeks of employment; (2) the 4 weeks during which claimant was looking
for work but was unable to find work should be excluded from the AWW calculation
because this period of unemployment was beyond claimant's control; (3) the 33 weeks
during which claimant was incarcerated and subsequently participated in required anger
management classes and drug and alcohol programs (collectively hereinafter referred to
as "rehabilitation classes") should not be excluded from the AWW calculation because this
period was within claimant's control and does not constitute special circumstances
requiring exclusion from the wage setting. Claimant appealed.
{¶ 24} 7. On June 10, 2021, the commission refused claimant's appeal.
{¶ 25} 8. On October 28, 2021, claimant filed a complaint for writ of mandamus.
Conclusions of Law and Discussion:
{¶ 26} For the reasons that follow, it is the magistrate's decision that this court
should grant a limited writ of mandamus.
{¶ 27} In order for this court to issue a writ of mandamus, a relator must establish
the following three requirements: (1) that relator has a clear legal right to the relief sought;
(2) that respondent has a clear legal duty to provide such relief; and (3) that relator has no
adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. Comm.,
11 Ohio St.2d 141 (1967).
{¶ 28} A clear legal right to a writ of mandamus exists where the relator shows that
the commission abused its discretion by entering an order that 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).
{¶ 29} Pursuant to Ohio workers' compensation law, benefits payable to claimants
are calculated based upon a figure known as the AWW. Calculation of the AWW is
governed by R.C. 4123.61, which provides:
The claimant's * * * average weekly wage for the year
preceding the injury * * * is the weekly wage upon which
No. 21AP-552 11
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 him to do
substantial justice to the claimants.
{¶ 30} Under the "standard formula" in the first paragraph of R.C. 4123.61, the
commission totals the wages for the 52 weeks before the injury and divides that total by
52, excluding unemployment beyond the control of the worker. However, the second
paragraph provides that the standard formula is not used when its application would be
unjust due to "special circumstances," and the commission may adopt a different method
of calculation to do substantial justice to the claimant. 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. Mattscheck v. Indus. Comm., 10th Dist.
No. 12AP-255, 2013-Ohio-285, ¶ 7, citing State ex rel. Erkard v. Indus. Comm., 55 Ohio
App.3d 186 (10th Dist.1988). The AWW must do the claimant "substantial justice" without
providing a windfall. State ex rel. FedEx Ground Package Sys. v. Indus. Comm., 126 Ohio
St.3d 37, 2010-Ohio-2451, ¶ 7, citing State ex rel. Logan v. Indus. Comm., 72 Ohio St.3d
599, 600 (1995). The "special circumstances" provision in R.C. 4123.61 has "generally been
confined to uncommon situations." State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d
286, 288 (1990). Thus, R.C. 4123.61 provides a standard AWW computation that is to be
used in all but the most exceptional cases. State ex rel. Gollihue v. Bur. of Workers' Comp.,
10th Dist. No. 05AP-924, 2006-Ohio-3910, ¶ 45, citing State ex rel. Cawthorn v. Indus.
Comm., 78 Ohio St.3d 112, 114 (1997).
{¶ 31} In the present case, claimant does not make any argument relating to the
SHO's determination under the "standard formula" that the 33 weeks during which
claimant was incarcerated and subsequently participated in the rehabilitation classes
should not be excluded from the AWW calculation because this period was within
No. 21AP-552 12
claimant's control. Instead, claimant argues that the commission abused its discretion
when it failed to exclude these 33 weeks as "special circumstances." Claimant asserts that,
under Ohio law, incarceration is a special circumstance requiring an alternative calculation
of the AWW, citing State ex rel. Sutherland v. Indus. Comm., 10th Dist. No. 85AP-866
1986 Ohio App.Lexis 8430, 1986 WL 10744 (Sept. 25, 1986). Claimant urges that special
circumstances exist here because he was incarcerated in the year prior to his injury, and
after release from prison, he was required to attend mandatory rehabilitation classes prior
to returning to the workforce. By refusing to exclude these 33 weeks, claimant contends,
the commission set his AWW substantially lower than his earnings at the time of his injury.
Claimant points out that, in the year before his injury, he earned an average of $682.98
per week for the weeks he worked, yet the commission calculated his AWW at more than
$400.00 less than this figure. He also points out that, in the 10 weeks prior to his injury,
he earned an average of $825.54, and the commission's calculation set his AWW to be over
$600.00 less than what claimant was actually earning at the time of his injury. Claimant
urges that the evidence demonstrates that he would have continued to be employed in his
job and would have continued to earn his same salary had he not been injured, and the
commission's calculation is an unjust barometer of his prospective future average wages.
{¶ 32} In Sutherland, the worker was incarcerated during the year prior to his
injury. At the time of his injury, he had only worked four days immediately preceding his
injury. Upon mandamus by the worker, this court concluded that the worker's period of
incarceration constituted "special circumstances," and, in that case, substantial justice
justified the use of an alternative method of computing the worker's AWW. We found that
compensation based upon the bare facts of claimant's earnings over the year proceeding
his injury resulted in a lopsided and unjust AWW upon which to base claimant's benefits,
noting that the purpose of permanent total disability ("PTD") compensation benefits is to
compensate a claimant for loss of earnings. Thus, in Sutherland, the "lopsided alteration
of the [AWW] 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." Smith v. Indus. Comm., 25 Ohio St.3d 25, 27 (1986).
{¶ 33} The circumstances in Sutherland differ substantially from those in the
present case. In Sutherland, the worker was incarcerated for the year prior to his injury.
No. 21AP-552 13
In the present case, the worker was incarcerated for only one week, and then participated
in rehabilitation classes for 32 weeks. Thus, the reason for each period of unemployment
in the current case must be analyzed separately. With regard to the 32 weeks of
rehabilitation classes, the magistrate first notes that Sutherland clearly does not address
whether a period of post-incarceration rehabilitation classes constitutes "special
circumstances." Therefore, Sutherland is easily distinguishable. Importantly, claimant's
problem in the present case is an evidentiary one. The circumstances of the worker's
unemployment in Sutherland were clear, i.e., incarceration. Here, there is no evidence in
the record explaining the circumstances surrounding the 32 weeks of unemployment
based upon the post-incarceration classes. Outside of claimant's averment that he "had"
to attend the rehabilitation classes, there is no evidence in the record to establish his
participation was mandatory, to indicate he was completely barred from employment
during this period of participation, or detailing the hours and frequency of the classes, his
actual attendance at the classes, and the location of the classes. The record is devoid of
details surrounding the classes, rendering a determination that they should constitute
"special circumstances" impossible. The burden was on claimant to establish that his
rehabilitation classes constituted "special circumstances." As pointed out by the
commission, claimant's appeal from the DHO order indicated that additional evidence
would not be submitted; thus, claimant had the opportunity to provide further details of
the 32 weeks of rehabilitation classes but failed to do so. In sum, the commission lacked
the necessary evidence in the record to conclude that claimant's period of unemployment
due to his rehabilitation classes constituted "special circumstances," and Sutherland is
distinguishable. Given the state of the record, and based upon Sutherland, the magistrate
cannot find that the commission abused its discretion or that claimant had a clear legal
right to the relief requested.
{¶ 34} However, with regard to the one-week period of incarceration, the
commission fails to explain the reasons supporting its finding that there existed no special
circumstances pursuant to R.C. 4123.61, and why this court's holding in Sutherland is not
applicable. Although Sutherland does not definitively require that all incarceration in all
cases be deemed "special circumstances" pursuant to R.C. 4123.61, it makes clear that a
period of incarceration may constitute "special circumstances," even if the incarceration
No. 21AP-552 14
was within the worker's control. In State ex rel. Exel Logistics, Inc. v. Indus. Comm., 10th
Dist. No. 03AP-456, 2004-Ohio-3594, this court relied upon Sutherland and [State ex rel.]
Riley v. Indus. Comm., 9 Ohio App.3d 71 (10th Dist.1983), to hold that, "[e]ven where the
period of unemployment before the new job was voluntary, the worker may qualify for the
'special circumstances' exception, depending on the circumstances." Exel at ¶ 14. Exel
likewise concerned a period of incarceration, and in that case, we found that under the
"special circumstances" exception, the commission may exclude periods of unemployment
that are plainly within the claimant's control, such as a period of unemployment caused by
violation of the criminal law. Id. at ¶ 19. The court in Exel cited Sutherland for the
proposition that "a period of incarceration may be considered a special circumstance so
that the average weekly wage needs to be calculated by the use of the alternative method
of computing such wages." Id. at ¶ 3.
{¶ 35} Here, the SHO failed to explain why no special circumstances applied. If the
SHO believed that incarceration can never constitute a special circumstance because it is
within a worker's control, such a finding is clearly contrary to our decisions in Sutherland
and Exel, which specifically hold that the commission may exclude periods of
unemployment even if they were plainly within the claimant's control, such as a period of
unemployment caused by incarceration. Therefore, a limited writ is warranted pursuant
to State ex rel. Noll v. Indus. Comm., 57 Ohio St.3d 203 (1991).
{¶ 36} Accordingly, for the above reasons, it is the magistrate's recommendation
that this court should issue a limited writ of mandamus, returning the matter to the
commission to vacate the SHO order with respect to the determination of "special
circumstances" and to issue a new order addressing whether claimant's period of
incarceration constituted special circumstances pursuant to Sutherland and Exel, and, if
the incarceration did constitute special circumstances, whether a different method of
calculation is required to do substantial justice to claimant.
/S/ MAGISTRATE
THOMAS W. SCHOLL III
No. 21AP-552 15
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).