ORIGINAL

s-s-s-s-s-s-s-s-s-S-S-S-s-s-s-s-s-s-s-S-s-s-S-S-s-s-s-s-s-s-s-s-s-s-s-S-S-S-S-s-s-s-s-s-s-s-s-S-S-s-s-s-s-s

IN THE SUPREME COURT OF OHIO

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

State of Ohio, ex rel.FedEx Ground Package System, Inc.,

Appellant, Case No. 09-0918

V.

Industrial Commission of Ohio

and

Christopher J. Roper,

Appellees.

On Appeal from the Franklin CountyCourt of Appeals, Tenth Appellate District

Court of Appeals Case No. 07AP-959

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

MERIT BRIEF OF FEDEX GROUND PACKAGE SYSTEM, INC.

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-sJohn T. Landwehr (0021711)Nicole A. Flynn (0074196)Mark A. Shaw (0059713)Eastman & Smith Ltd.One SeaGate, 24a' FloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777Counsel for Appellant,FedEx Ground Package System, Inc.

t= 15

SEP a 4 2009

CLERK OF COURTSUPREME COURT OF OHIO

Theodore A. Bowman (009159)Gallon, Takacs, Boissoneault &Schaffer Co. L.P.A.3516 Granite CircleToledo, OH 43617Telephone: (419) 843-2001Facsimile: (419) 843-6665Counsel for Appellee,Christopher J. Roper

Gerald H. Waterman (0020243)Assistant Attomey GeneralWorkers' Compensation Section150 East Gay Street, 22a FloorColumbus, Ohio 43215Telephone: (614) 466-6696Facsimile: (614) 752-2538Counsel for Appellee,Industrial Commission of Ohio

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TABLE OF CONTENTS

PageSTATEMENT OF THE FACTS .....................................................................................................1

ARGUMENT ................................................................................................................................... 3

A. Standard for Mandamus Relief . ...............................................................................3

B. Proposition of Law No. I: Wages from concurrent dissimilar employmentshould not be included in the computation of one's Average Weekly Wageunless special circumstances warrant inclusion .......................................................4

1. The appellate court's Opinion is erroneous because the GeneralAssembly intended a flexible approach to calculating AW W . ....................5

a. Smith and the "special circumstances" rule must be read inconjunction with one another ...........................................................6

(i)

(ii)

The reasoning enunciated in Smith remains sound. ...........10

The "automatic inclusion" rule increases the gapbetween law and equity ......................................................15

2. Roper has not demonstrated special circumstances warranting anupward adjustment of his AWW ................................................................16

C. Proposition of Law No. II: FWW can be adjusted only under the limitedcircumstances set forth in O.R.C. 4123.61 . ...........................................................19

CONCLUSION ..............................................................................................................................20

APPENDIX ....................................................................................................................................22

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TABLE OF AUTHORITIESPage

Cases

Ayala v. Caesars Palace and CDS Compfarst (2003), 71 P.3d 490; 119 Nev. 232 .......:.............. 11Bolton v. Oregonian Publishing Co. (1988), 93 Ore. App. 289 ................................................... 11Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284 ......................................................... 20Clark v. Scarpelli (2001), 91 Ohio St.3d 271 ................................................................................. 7Hiram House v. Indus. Comm. (1987), 42 Ohio App.3d 29, 536 N.E.2d 36 ................................ 15Knight v. Cohen (1959), 56 N.J. Super 516; 153 A.2d 334 ....................................................:..... 11Lahay v. Hastings Lodge No. 1965 BPOE (1976), 247 N.W.2d 817, 398 Mich. 467 .................. 11LeFort v. Miller's Merry Manor, Inc. (1991), 572 N.E.2d 1330, 1991 Ind. App. LEXIS

944 ........................................................................................................................................... 11Lipsky v. Barry (Dec. 11, 1990), Franklin App. No. 90A0-07, 1990 Ohio App. LEXIS

5538 ............................................................................................................................. 7, 8, 9, 10Lowe's # 0507 v. Greathouse (2006), 182 S.W.3d 524; 2006 KY LEXIS 13 .............................. 11Shaw v. United Parcel Service (2003),825 A.2d 239 ................................................................... 17Shaw v. United Parcel Service (Jan. 30, 2003), Sup. Ct. of Del. O1A-04-002 JTV, 2003

Del. Super. LEXIS 30 ............................................................................................................. 17Shaw v. United Parcel Service, Sup. Ct. of Del. 01 A-04-002 JTV.............................................. 18State ex rel. Advantage Tank Lines v. Indus. Comm. (2005), 107 Ohio St.3d 16, 2005-

Ohio-5829 ............................................................................................................................... 14State ex rel. Baker Concrete Construction, inc. v. Indus. Comm. (2004), 102 Ohio St.3d

149, 2004 Ohio 2114 ............................................................................................................... 17State ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 451 N.E.2d 225 ............................... 4State ex rel. Cawthorn v. Indus. Comm. (1997), 78 Ohio St.3d 112 ............................................ 16State ex rel. G.E Business Equipment, Inc. v. Indus. Comm. (1981), 66 Ohio St.2d 446,

423 N.E.2d 99 ........................................................................................................................... 4State ex rel. Huron Cty. Bd. ofEdn. v. Howard (1957), 167 Ohio St. 93 .........:............................. 7State ex rel. Hutton v. Indus. Comm. (1972), 29 Ohio St.2d 9, 278 N.E.2d 34 .............................. 4State ex rel. Kidwell v. Indus. Comm. (Aug. 26, 2003), Franklin App. 02AP-940, 2003

Ohio 4509 ................................................................................................................................ 17State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 505 N.E.2d 962 .............. 4State ex rel. Logan v. Indus. Comm. (1995), 72 Ohio St.3d 599, 651 N.E.2d 1008 ....................... 7State ex rel. Mancan, Inc. v. Indus. Comm. (July 20, 2006) Franklin App. 05AP-883,

2006-Ohio-3710 ...................................................................................................................... 18State ex rel. McDulin v. Indus. Comm. (2000), 89 Ohio St.3d 390 .............................................. 20State ex rel. McHugh v. Indus. Comm. (1942), 140 Ohio St. 143, 149, 42 N.E.2d at 777 ........... 15State ex rel. Powell v. C.R. O'Neil & Co. (2007), 116 Ohio St.3d 22, 2007-Ohio-5504,

876 N.E.2d 520 ......................................................................................................................... 7State ex rel. Pressley v. Indus. Comm. (1967), 11 Ohio St.2d 141, 228 N.E.2d 631 ...................... 4State ex rel. Price v. Cent. Serv., Inc. (2002), 97 Ohio St.3d 245, 2002 Ohio 6397 .................... 17State ex rel. Smith v. Indus. Comm., 127 Ohio St. 217 ............................................................. 5, 12State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 399 N.E.2d 81 ........... 4State ex rel. Wireman v. Indus. Comm. (1990), 49 Ohio St.3d 286, 551 N.E.2d 1265 .................. 5State ex rel. Wireman v. Indus. Comm. (1990, 49 Ohio St.3d 286, 287, 551 N.E.2d 1265 .......... 10

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Statutes

4123.61 .......................................................................................................................... 7, 10, 19, 20General Code § 1465-84 ............................................................................................................. 6, 8O.R.C. § 4123.61 .......................................................................................................................... 19

Treatises

Larson's Law of Worker's Compensation, § 93.02[3] [a] (2005) ................................................. 17Larson's Law of Worker's Compensation, § 93.03[1][a] (2007) ................................................. 11

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STATEMENT OF THE FACTS

In December 2004, Christopher Roper began working at FedEx Ground as a part-time

package handler; the job required him to remove packages from a conveyor belt and load them

into a trailer. (Supp. 15-17, 27.) In April 2006, Roper began concurrent employment at

Integrated Pest Control where, as a Wildlife Control Operator, he was required to spray floors

and baseboards. (Supp. 16, 40-41.) He worked for Integrated Pest Control until at least the end

of 2006. (Supp. 41.) Prior to his employment with Integrated Pest Control, Roper was self-

employed as a Wildlife Control Operator for Affordable Animal Removal. (Supp. 7-8, 40.) His

federal tax return for 2006 shows that he operated Affordable Animal Removal at a loss. (Supp.

7-8.)

On October 24, 2006, Roper sustained an industrial injury while working at FedEx

Ground. (Supp. 22.) Following the industrial injury, Roper began treating with James

Andonian, M.D. who recommended restrictions of no "lifting or carrying more than 20 pounds

and performing only occasional trunk bending or twisting." (Supp. 18, 21.) Because FedEx

Ground could accommodate Roper's restrictions, he was able to continue working. (Supp. 19.)

On December 19, 2006, FedEx Ground certified Roper's claim for "lumbar sprain/strain

with L4-5 disc protrusion" and set his full weekly wage ("FWW") and average weekly wage

("AWW") at $250.80 and $160.45 respectively. (Supp. 2.)

In January of 2007, FedEx Ground could no longer accommodate Roper's restrictions

(which remained largely unchanged) and began paying him temporary total disability

compensation ("TTC"). (App. 17).

Dr. Andonian continued to treat Roper and maintained the same restrictions until the end

of February, at which time Roper showed improvement and Dr. Andonian reduced Roper's

restrictions. (Supp. 35-39, 62.) Shortly thereafter, Roper left Dr. Andonian's care and began

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treating with a chiropractor, Michael A. Poitinger. In contrast to Dr. Andonian, Dr. Poitinger

determined that Roper was "totally disabled from work" at FedEx Ground from April 25, 2007 to

June 25, 2007. (Supp. 44, 49.) No restrictions were provided. (Supp. 44, 49). Finally, on June

25, 2007, Dr. Poitinger indicated that Roper could return to work with the following restriction:

"[a]void repetitive low back bending or lifting." (Supp. 49, 65, 90.) FedEx Ground was unable

to accommodate Roper's restrictions and continued to pay TTC. (Supp. 64.)

On April 11, 2007, Roper requested that his FWW and AWW be reset to include earnings

from Integrated Pest Control and Affordable Animal Removal. (Supp. 42.) According to

Roper's 2006 tax return, he operated Affordable Animal Removal at a net loss. (Supp. 7.)

However, an unverified C-94-A indicates that Roper earned approximately $504 per week from

Integrated Pest Control during the one year prior to his injury. (Supp. 41.) During that same

year, he earned approximately $160.45 per week from FedEx Ground. (Supp. 2.) Accordingly,

his wages from Integrated Pest Control were approximately $343.55 higher per week than his

wages from FedEx Ground - a more than 300% disparity! (Supp. 2, 41.)

On May 15, 2007, a district hearing officer erroneously granted Roper's request to reset

his FWW and AWW, rendering a finding that part-time employment with FedEx Ground

constituted "special circumstances." (Supp. 52-53.) The FWW was set at $457.36 and the

AWW was set at $417.05. (Supp. 52-52.) The district hearing officer failed to inquire into the

reasons for Roper's part-time employment, failed to inquire whether Roper was temporarily and

totally disabled from employment with Integrated Pest Control or Affordable Animal Removal,

and failed to examine the duration of Roper's self employment. (Supp. 52-53.)

FedEx Ground appealed and a staff hearing was held on June 29, 2007. (Supp. 66-67.)

The staff hearing officer erroneously found that "special circumstances" existed simply because

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Roper was employed part-time with FedEx Ground. Like the district hearing officer, she failed

to inquire into the cause of Roper's part-time employment, failed to determine whether Roper

was temporarily and totally disabled from his employment with Integrated Pest Control or

Affordable Animal Removal, yet determined that aggregating the wages would do substantial

justice. (Supp. 66-67.) She set his FWW rate at $457.36 and his AWW rate at $417.05 (the

latter being more than 2'/2 times his AWW at Fed Ground) and ordered FedEx Ground to adjust

the previously paid compensation. (Supp. 66-67.) She did not incorporate any wages from

Affordable Animal Removal, because Roper operated the business at a loss. (Supp. 66-67.)

FedEx Ground appealed the staff order, but its appeal was refused. (Supp. 70-88.) A

letter requesting reconsideration was also denied. (Supp. 91-107.) FedEx Ground instituted this

action in the Tenth District Court of Appeals. (App. 36-42.) On August 15, 2008, Magistrate

Kenneth Macke issued a Decision recommending that FedEx Ground's request 'for a writ of

mandamus be denied. (App. 15-27.) FedEx Ground filed objections to the Magistrate's

Decision and on April 2, 2009, the Court of Appeals overruled one of FedEx Ground's

objections, sustained another, and denied FedEx Ground's request for a writ of mandamus.

(App. 4.) FedEx Ground filed a Notice of Appeal to this Court on May 10, 2009. (App. 1-3.)

ARGUMENT

A. Standard for Mandamus Relief.

To establish entitlement to a writ of mandamus, FedEx Ground must demonstrate all of

the following: 1) a clear legal right to the relief prayed for; 2) a clear legal duty on the part of the

Commission to perform the requested act; and 3) no plain and adequate remedy in the ordinary

course of the law. State ex rel. Westchester Estates, Inc. v. Bacon (1980), 61 Ohio St.2d 42, 399

N.E.2d 81. If FedEx Ground can satisfy these criteria, it is entitled to the requested writ. State

ex rel. Berger v. McMonagle (1983), 6 Ohio St.3d 28, 451 N.E.2d 225

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FedEx Ground has the burden of showing a clear legal right to a writ of mandamus as a

remedy from the determination of the Commission. State ex rel. Pressley v. Indus. Comm.

(1967), 11 Ohio St.2d 141, 228 N.E.2d 631 A clear legal right to a writ of mandamus exists if

FedEx Ground can show that the Commission abused its discretion by issuing an order which is

not supported by any evidence in the record. State ex rel. Hutton v. Indus. Comm. (1972), 29

Ohio St.2d 9, 278 N.E.2d 34. Where the record contains no evidence to support the findings and

determination of the Commission, there is an abuse of discretion and mandamus is appropriate.

State ex rel. G.T Business Equipment, Inc. v. Indus. Comm. (1981), 66 Ohio St.2d 446, 423

N.E.2d 99; State ex rel. Lewis v. Diamond Foundry Co. (1987), 29 Ohio St.3d 56, 505 N.E.2d

962.

FedEx Ground is entitled to a writ of mandamus because the Industrial Commission

abused its discretion when it adjusted Roper's AWW and FWW based upon special

circumstances. Roper's part-time employment with FedEx Ground is not a per se special

circumstance and the Industrial Commission failed to inquire into the nature of Roper's part-time

employment. Further, there is no legal basis for adjusting one's FWW.

B. Proposition of Law No. I: Wages from concurrent dissimilaremployment should not be included in the computation of one'sAverage Weekly Wage unless special circumstances warrantinclusion.

Seventy five years have passed since this Court's decision in State ex rel. Smith v. Indus

Comm. (1933), 127 Ohio St. 271 (App. 43-46), yet, the wisdom of the decision remains: the

nature of one's concurrent employment must be considered before it can be included in one's

AWW.

The appellate court overruled this Court's holding in Smith and held that the entirety of

one's earnings from both employers for the twelve months preceding injury should

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automatically be included in one's AWW calculation. This rigid approach contravenes the more

flexible approach mandated by law and in this particular case, yields an unjust result. FedEx

Ground avers that the reasoning advanced in the Smith decision remains sound and more

importantly, will consistently produce substantial justice. Accordingly, R.C. 4123.61, which

specifies the manner of calculating AWW, must be read in conjunction with this Court's holding

in Smith.

Here, the record is devoid of evidence that would warrant an upward adjustment of

Roper's AWW based upon dissimilar concurrent employment. The Industrial Commission erred

when it concluded that Roper's part-time employment with FedEx constituted special

circumstances. Part-time employment is not a per se special circumstance and the Industrial

Commission did not inquire into the nature of Roper's part-time employment. Roper failed to

meet his burden of demonstrating that the standard wage calculation would yield an unjust result.

Accordingly, FedEx Ground is entitled to a writ of mandamus.

1. The appellate court's Opinion is erroneous because theGeneral Assembly intended a flexible approach to calculatingAWW.

"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. (1990), 49 Ohio St.3d 286, 287,

551 N.E.2d 1265. The appellate court's approach to calculating AWW will only occasionally

arrive at a "fair basis" and is erroneous because the 1937 amendment to General Code 1465-84

did not alter the relevant effect of this Court's holding in State ex rel. v. Indus. Comm., 127 Ohio

St. 217.

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a. Smith and the "special circumstances" rule must beread in conjunction with one another.

When calculating the AWW, earnings from an employee's concurrent employment that

is not similar in nature to the work he was performing when injured should not automatically be

included. Rather, such wages should only be included when special circumstances warrant

inclusion.

In 1933, this Court decided the precise issue before it today - whether the term "average

weekly wage" encompasses earnings of an employee earned in concurrent employment that is

not similar in nature to the work he was performing when injured. Smith v. Indus. Comm., 127

Ohio St. 217. In Smith, two volunteer firefighters were injured while en route to a fire. The

Court considered whether they were entitled to have their regular wages as a baker and restaurant

employee included in their AWW. The relevant provision of the General Code provided: "The

average weekly wage of the person at the time of the injury shall be taken as the basis upon

which to compute the benefits." General Code § 1465-84 (1933). Despite its policy of

construing "liberally the provisions of the Workmen's Compensation Act in favor of injured

employees and their dependants," this Court held:

[W]e should have to resort to a dubious and forced construction of our statutes tohold that the phrase "average weekly wages" [sic] as used therein was intendedto cover both the earnings of an employe [sic] in the particular work he wasperforming when injured and the remuneration received in a distinct and separateemployment in which he was generally engaged, and which was not connected inany way with the employment in which the injury was suffered.

State ex rel. Smith v. Indus. Comm., 127 Ohio St. 217 at 222.

In 1937, the General Assembly amended § 1465-84 to specify that wages "for the year

preceding the injury" should be considered when calculating AWW and adding the "special

circumstances" rule:

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In cases where there are special circumstances under which the average weeklywage cannot justly be determined by applying the above provisions thecommission, in determining the average weekly wage, in such cases, shall usesuch method as will enable it to do substantial justice to the claimants.

117 Ohio Laws 253. (App. 48-49.)

The General Assembly retained the term "average weekly wage" as it was interpreted by

this Court in Smith. "It is presumed that the General Assembly is fully aware of any prior

judicial interpretation of an existing statute when enacting an amendment." Clark v. Scarpelli

(2001), 91 Ohio St.3d 271, 278, 744 N.E.2d 719 citing State ex rel. Huron Cty. Bd of'Edn. v.

Howard (1957), 167 Ohio St. 93, 96, 146 N.E.2d 604. The General Assembly's conscious

decision not to change the codified language or otherwise define the phrase "average weekly

wage" indicates that the General Assembly intended this Court's interpretation to continue as the

law of the State.

When examining the effect of the 1937 amendment, the appellate court correctly

concluded that because the "special circumstances" rule did not exist when Smith was decided,

the Smith decision is not controlling on the issue of whether special circumstances mandated the

adjustment of Roper's AWW. (App. 10.) However, the appellate court incorrectly concluded

that the term "for the year preceding the injury" overruled this Court's holding in Smith. The

appellate court's holding is inconsistent with Smith, R.C. 4123.61, and its own holding in Lipsky

v. Barry (Dec. 11, 1990), Franklin App. No. 90AO-07, 1990 Ohio App. LEXIS 5538. Moreover,

it is based upon a plain misreading of State ex rel. Logan v. Indus. Comm. (1995), 72 Ohio St.3d

599, 651 N.E.2d 1008 and State ex rel. Powell v. C.R. O'Neil & Co. (2007), 116 Ohio St.3d 22,

2007-Ohio-5504, 876 N.E.2d 520, and is contrary to the practice employed by the Industrial

Commission and its hearing officers.

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Here, the appellate court's conclusion that the 1937 amendment to General Code § 1465-

84 adding a look-back period ("for the ycar preceding the injury") altered the holding in Smith is

nonsensical. The issue in Smith was contemporaneous dissimilar employment. Thus, even if

"for the year preceding the injury" had been part of the statute, it could not have altered the

outcome. There was no look-back period issue in Smith - the Court's holding was directed to the

very limited issue of contemporaneous dissimilar employment.

Moreover, the appellate court's holding in Lipsky v. Barry, Franklin Cty. No. 90A0-07,

1990 Ohio App. LEXIS 5538 undermines its conclusion that wages from concurrent employment

should automatically be included in one's AWW. In Lipsky, the court considered whether wages

received in employment concurrent with and similar to employment in which the injury occurred

should be included in one's AWW. The claimant was injured while tending bar at Lee's Cafe

and began receiving TTC. He sought to have his AWW adjusted to include earnings from

concurrent employment at a second bar, Bill's Open Door. The court held that contemporaneous

employment "is a special or unusual circumstance which the commission is directed to consider

under R.C. 4123.61. Specifically, the court held:

We conclude that R.C. 4123.61 requires the commission when calculating theaverage weekly wage to consider all wages earned in concurrent employments, atleast if they are similar to the employment in which the claimant is injured. Thisconclusion follows both from the language of R.C. 4123.61 and the Smith case,which recognized the similar employment doctrine....

In this case, relator is apparently employed part-time by both Lee's Caf6 andBill's Open Door. This is a special or unusual circumstance which thecommission is directed to consider under R.C. 4123.61. This is also consistentwith the holding in Wireman that the average weekly wage calculation must dosubstantial justice while avoiding a windfall. A windfall will not resultconcerning similar employment as the claimant will most probably be disabledfrom both jobs....

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Lipsky, at *7-9 (emphasis added). Relying on Smith and R.C. 4123.61, the court determined that

wages from concurrent employment are not automatically included in AWW but rather, may be

included based upon special circumstances, "at least if they are similar in the employment in

which the claimant is injured." Lipsky at *7.

In Lipsky, the court read R.C. 4123.61 in conjunction with Smiih. Here, the appellate

court held that the 1937 statutory amendment overruled Smith. In the absence of a change in the

law, the appellate court failed to explain why its interpretation of the law changed. FedEx

Ground avers that the court's interpretation in Lipsky - that wages from concurrent similar

employment are not automatically included in one's AWW, but may be considered based upon

special circumstances - reflects the approach dictated by the General Assembly.

Moreover, the appellate court, relying on two earlier decisions of this Court, erroneously

concluded that this Court has historically automatically included wages from all employment in

the AWW. (Appendix, 12-13.) (citing Logan, 72 Ohio St.3d 599 and Powell, 116 Ohio St.3d

22)). In Logan, the claimant sought to have his wages from part-time employment excluded

from his AWW because the part-time earnings decreased his average earnings. The appellate

court erroneously referred to the claimant's part-time employment as concurrent. However, if

the part-time employment was truly concurrent with claimant's full-time employment, it would

have increased his AWW, not decreased it. The issue appears to have been one of periods of

part-time employment, not part-time employment concurrent with full-time employment. Thus,

the appellate court's reliance on Logan is misplaced.

Likewise, the appellate court erroneously relied on Powell, supra for the proposition that

all wages should automatically be included in one's AWW. In Powell, this Court commented

that claimant's self-employment income for the relevant one year period should be considered.

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However, Powell did not lend itself to consideration of contemporaneous employment. As best

as FedEx Ground can tell, neither the decision nor the underlying briefs addressed whether the

other employment was actually contemporaneous or simply occurred during the relevant one

year look back period. Simply because an individual was employed by two different entities

during a period of time (whether it be a month or a year) does not equate to working two j obs at

the same time. Again, the court's reliance on Powell is misplaced.

Moreover, both Lipsky and the district and staff hearing orders in the proceedings below

demonstrate that the "automatic inclusion" rule announced by the court of appeals is contrary to

the appellate court's previous interpretation of the law and the Industrial Commission's own

practice. If the law were as the court of appeals contends, there would have been no writ issued

in Lipsky ordering "the commission to further consider whether this income should be included

in realtor's average weekly wage under the special circumstances of [that] case" and the hearing

officers in the proceedings below would never have reached the question of special

circumstances. Rather, they would have automatically included in Roper's AWW his earnings

from concurrent employment.

Based on the foregoing, the foundation of the appellate court's decision is faulty. There

is an absence of legal support for its conclusion, particularly when Ohio courts have historically

read Smith in conjunction with R.C. 4123.61. The court's inexplicable refusal to do so here was

in error.

(i) The reasoning enunciated in Smith remainssound.

The purpose of the AWW is "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. A fair basis for award for the loss of future compensation can be reached only by

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reading R.C. 4123.61 in conjunction with Smith. Conversely, the "automatic inclusion" rule

established by the appellate court cannot consistently produce a fair basis for award for the loss

of future compensation because it only considers wages already eamed and gives no

consideration to whether a claimant is capable of performing concurrent employment in the

future.

The record evidence in this case demonstrates that Roper worked two entirely different

occupations with different physical requirements. After he was injured, Roper was able to

continue working both jobs, with restrictions, He began collecting TTC only after FedEx

Ground (his part-time employer) could no longer accommodate his restrictions. The record

indicates that Roper could have continued working for his other employer but presumably quit so

that he could collect TTC. Thus, aggregating his wages from concurrent dissimilar employment

when he was apparently able to continue performing that same employment did not achieve the

purpose of the AWW. Roper's loss of future wages in his concurrent employment was not

affected if he was capable of performing the other job.

The facts of this case exhibit the rationale behind this Court's holding in Smith: if

concurrent employment is similar in nature, it is reasonable to conclude that a claimant would be

disabled from both employments. Indeed, the majority of jurisdictions addressing the issue have

adopted the "similar employment" rule. Larson's Law of Worker's Compensation, § 93.03[l] [a]

(2007); see also LeFort v. Miller's Merry Manor, Inc. (1991), 572 N.E.2d 1330, 1991 Ind. App.

LEXIS 944; Lowe's # 0507 v. Greathouse (2006), 182 S.W.3d 524; 2006 KY LEXIS 13; Ayala

v. Caesars Palace and CDS Compfirst (2003), 71 P.3d 490; 119 Nev. 232; Bolton v. Oregonian

Publishing Co. (1988), 93 Ore. App. 289; Lahay v. Hastings Lodge No. 1965 BPOE (1976), 247

N.W.2d 817, 398 Mich. 467 Knight v. Cohen (1959), 56 N.J. Super 516; 153 A.2d 334.

11432145v1

Conversely, where, as here, a claimant works in two entirely different occupations with different

physical requirements, it is unreasonable to automatically assume that his inability to work one

job equates to an inability to work the other. Such an erroneous assumption creates a

disincentive for employees to return to the workforce.

Moreover, the result dictated by the appellate court is not one which the General

Assembly could have reasonably intended. Employers should not automatically have to bear

more than the "cost" of the injuries sustained in their service. They should not be required to pay

greater benefits for temporary disability than the maximum benefits that would be due on the

basis of wages that the claimant was receiving in their employ. The fact that a claimant had

other employment should not automatically enhance an employer's workers' compensation

liability.

In order to illustrate the viability of the Smith rationale and the "special circumstances"

rule, let us consider the following scenarios under the rigid approach advanced by the appellate

court and under the more flexible approach intended by the General Assembly:

Scenario No. 1: Rose works part-time at The Factory as a widget maker;she earns $100 per week. She also works full-time as a receptionist answeringphones at a hair salon where she earns $500 per week. While working one nightat The Factory, Rose breaks a leg; she can't work as a widget maker until her legis healed, but she can still answer phones at the hair salon.

Appellate court's calculation: Rose's AWW would automatically be setat $600 per week. Rose can quit her job at the hair salon and collect TTC or shecan collect working wage loss. If she chooses the former, Rose's part-timeemployer is responsible for payments of $400, almost four times the amount itwould have paid Rose for working, while she gets a windfall because she hasvoluntarily chosen not to work.

General Assembly's oach: Rose's AWW is set at $100 per week.Rose can seek to have her AWW adjusted based upon special circumstances. Ifthe Industrial Commission finds that special circumstances exist, Rose can seekworking wage loss. Her part-time employer is not responsible for paying Rose

12432145v1

any more than it would have had she continued working for it and Rose has notbeen incentivized to quit her full-time job and collect money.

Scenario No. 2: Same as above, except Rose breaks her right hand whileworking at The Factory. This time, she cannot work either job because shecannot use her right hand to answer phones and make appointments or to performher widget making job.

A12pellate court's calculation: Rose's AWW would automatically be setat $600 per week. Rose can collect TTC based upon an AWW of $600 per weekand will not collect a windfall.

General Assembd 'y s approach: Rose's AWW is set at $100 per week.Rose can seek to have her AWW adjusted based upon special circumstances.She can submit medical evidence indicating that she is unable to perform bothjobs. If the Industrial Commission finds that special circumstances exist becauseRose cannot work either job, Rose can collect TTC based on an AWW of $600and will not collect a windfall.

Scenario No. 3: Rose's hand recovers enough such that she can return toher receptionist job, but not her part-time job. But Rose has grown accustomedto getting paid while staying at home and would prefer to maintain that lifestylefor as long as possible.

Appellate court's calculation: Rose's AWW was automatically set at$600 per week. She was never required to produce any evidence indicatingwhether she was unable to perform her receptionist job and there was never anadministrative finding that she was unable to perform the receptionist job.Although Rose can physically return to the receptionist job, the record is devoidof any evidence regarding Rose's physical ability to perform the receptionist job,•accordingly, Rose's part-time employer never learns that Rose can physicallyreturn to the receptionist job and Rose has no incentive to return to work. Shereceives a windfall for as long as she is unable to work her part-time job at TheFactory.

General Assembly's approach: Rose's AWW was adjusted to $600 perweek based upon an administrative finding that Rose could not work either of herjobs. Rose's part-time employer can review the medical records indicating thatRose can now physically return to her full-time job, so the part-time employermoves to terminate TTC. TTC is terminated and Rose begins collecting workingwage loss. Rose's part-time employer is only responsible for paying more than itwould have paid Rose for working when she is physically unable to work bothjobs.

13432145v7

As illustrated above, the Court of Appeal's rigid approach to calculating AWW not only

creates a disincentive for people to return to work, but only produces a fair result some of the

time. Conversely, the General Assembly's more flexible approach consistently yields a fair basis

for award for the loss of future compensation.

As further example of the continued relevance of Smith, consider the potential windfall

effect of a permanent partial disability award when wages from concurrent employment are

automatically aggregated. Permanent partial disability compensation is a type of pain and

suffering award intended to compensate injured employees who can still work. State ex rel.

Advantage Tank Lines v. Indus. Comm. (2005), 107 Ohio St.3d 16, 2005-Ohio-5829. PPD is

governed by R.C. 4123.57, which provides that the percentage of an employee's permanent

partial disability must be based upon the employee's condition resulting from the injury.

Claimants will receive sixty-six and two-thirds percent of their AWW up to a maximum amount.

R.C. 4123.57. An illustration best exemplifies the windfall effect:

Bill and Joe work side by side installing windows at The Part-Time Factory where they

earn $100 per week. Both suffer identical injuries to their left arms as a result of broken glass;

their doctors conclude that they are 5% permanently and partially disabled as a result of their

workplace injury. Both continue working. On the weekends, Bill also works at a popular bar

where he collects upwards of $100 per night in tips. Joe's AWW is $100 and Bill's AWW is

$300. Joe receives a PPD award of $666.66; Bill receives a PPD award of $1999.80. Even

though the employees have the same condition resulting from the same injury, Bill receives a

windfall simply because he has another job, even though his injury has not disabled him from

performing any part of his bartender job. The PPD award is no longer based upon the

employee's disability resulting from the injury and instead, creates a windfall.

14432145v1

For the foregoing reasons, the Smith decision must be read in conjunction with R.C.

4123.61.

(ii) The "automatic inclusion" rule increases the gapbetween law and equity.

The "automatic inclusion" rule established by the appellate court creates a substantial

imbalance in Ohio's risk based system of workers' compensation insurance, which will result in

a substantial injustice to employers. Further, it will have a chilling effect on employment in

Ohio, as employers will be forced to find other means of insuring their risk.

The workers' compensation system is a risk based system of insurance whereby

employers are responsible for insuring the risk associated with their particular business. R.C.

4123.29. As with any insurance, the workers' compensation system generally assesses

premiums to participating employers. Employers are assessed premiums based upon their

payroll and the degree of hazard associated with the particular employment being performed.

R.C. 4123.29; see also State ex rel. McHugh v. Indus. Comm. (1942), 140 Ohio St. 143, 149, 42

N.E.2d at 777 (recognizing that rates of contribution are dependent upon "the nature of the work

performed"). In order to ensure solvency, premiums should reflect claims paid. Hiram House v.

Indus. Comm. (1987), 42 Ohio App.3d 29, 34, 536 N.E.2d 36.

The "automatic inclusion" rule advanced by the appellate court presents two distinct

problems. First, an employer's expected losses will be disproportionate to its actual losses; i.e.,

claims paid will exceed premiums, thus creating an automatic imbalance in the system of

insurance. Second, employers, regardless of whether they are state-funded or self insured, will

be forced to accept the risk of other employers and other employment over which they have no

control. Thus, the system is no longer a risk-based system and employers will be forced to limit

their risk in other ways.

15432145v1

Ohio employers will be forced to take independent action to limit the risk associated with

insuring concurrent employment. For example, consider an employer like FedEx Ground that

employs hundreds of employees throughout the State, most on a part-time basis. The "automatic

inclusion" rule makes FedEx Ground automatically responsible for insuring its employees'

concurrent employment, regardless of whether FedEx Ground is aware of the concurrent

employment or has any control over the concurrent employment. Assuming that many of FedEx

Ground's employees hold two jobs, this creates a substantial risk to FedEx Ground that far

outweighs the risks associated with its particular employment. In order to limit this type of risk,

employers may be forced to implement rules that prohibit employees from working elsewhere.

Although such rules may be detrimental to employees, they may serve as an employer's only

means of protecting itself from the automatic exposure created by the "automatic inclusion" rule.

For these reasons, the appellate court's holding enlarges the gap between law and equity

and cannot be the result intended by the General Assembly.

2. Roper has not demonstrated special circumstances warrantingan upward adjustment of his AWW.

FedEx Ground is entitled to a writ of mandamus because the Industrial Commission

abused its discretion when it adjusted Roper's AWW simply based on his part-time employment.

The record does not reflect the existence of special circumstances and the Industrial Commission

failed to inquire into the cause of Roper's part-time employment.

Ohio Revised Code Section 4123.61 provides a standard AWW computation "that is to

be used in all but the most exceptional cases." State ex rel. Cawthorn v. Indus. Comm. (1997),

78 Ohio St.3d 112, 114, 676 N.E.2d 886. Exceptional or "special circumstances" exist when the

AWW would be based on an "obviously ... unjust barometer" of a claimant's "prospective future

average wages." State ex rel. Price v. Cent. Serv., Inc. (2002), 97 Ohio St.3d 245 at 251, 2002-

16432145v1

Ohio-6397, 779 N.E.2d 195 (overruled on other grounds.) Special circumstances can be invoked

only if (1) the standard calculation yields a result that is substantially unjust and (2) adjusting the

figure will not result in a windfall to claimant. See State ex rel. Kidwell v. Indus. Comm. (Aug.

26, 2003), Franklin App. 02AP-940, 2003 Ohio 4509.

Here, the staff hearing officer adjusted claimant's AWW because she found that Roper's

part-time work constituted "special circumstances." It is axiomatic that part-time work is not a

per se "special circumstance." State ex rel. Logan. v. Indus. Comm., 72 Ohio St.3d 599, 601.

Because of the various reasons for part-time employment, the Industrial Commission is required

to examine part-time employment with "extra scrutiny." State ex rel. Baker Concrete

Construction, Inc. v. Indus. Comm. (2004), 102 Ohio St.3d 149 at 151, 2004 Ohio 2114, 807

N.E.2d 347. Thus, part-time employment constitutes a "special circumstance" only when such

part-time employment is "beyond [a claimant's] control." Id at 152; see also State ex rel. Logan

v. Indus. Comm., 72 Ohio St.3d at 602 (finding a lack of special circumstances when claimant's

part-time employment was not beyond his control and was due to other employment.)

Conversely, special circumstances do not exist when the part-time character of one's

employment itself is inherent in the nature of the employment. Larson's Law of Worker's

Compensation, § 93.02[3][a] (2005) citing Shaw v. United Parcel Service (Jan. 30, 2003), Sup.

Ct. of Del. OlA-04-002 JTV, 2003 Del. Super. LEXIS 30 (affirmed by Shaw v. United Parcel

Service (2003), 825 A.2d 239).

In Shaw, the claimant was one of 60 part-time pre-loaders for UPS. The pre-loader

position was part-time in nature and was likely to remain so. After being injured on the job,

claimant sought to have her AWW wage computed based upon a full-time work week because

she was available and willing to work full time. The court refused to adjust her AWW because

17432145v1

the pre-loader position was inherently a part-time position and claimant did not have a

reasonable expectation that it would ever be otherwise. Shaw v. United Parcel Service, Sup. Ct.

of Del. OlA-04-002 JTV.

Because the character of and reasons for one's part-time employment are necessary to

properly assess whether special circumstances are present, the Industrial Commission abuses its

discretion if it does not inquire into the reasons for a claimant's part-time employment:

[T]he problem is that the commissions' order simply does not provide anexplanation for why `special circumstances' were found in this particular case.As the court stated in Clark, the commission must inquire about the reasons whythe claimant's hours had been limited and cannot determine the issue without aninquiry. The simple conclusion that `special circumstances' were found `[i]norder to do substantial justice without providing a windfall' simply is notsufficient without further findings and explanation since the `injured worker didnot have a history of working a full 40 hour week.'

State ex rel. Mancan, Inc. v. Indus. Comm. (July 20, 2006) Franklin App. 05AP-883, 2006-Ohio-

3710 (emphasis added.)

Here, the record does not reflect evidence of "special circumstances" that would warrant

an upward adjustment. Because part-time employment is not aper se special circumstance, it is

Roper's burden to prove that the standard wage calculations would yield an unjust result. The

record is devoid of evidence that Roper satisfied this burden. The record does not provide any

indication that Roper was disabled from working for Integrated Pest Control (or from operating

his own business). Roper was physically able to work, and continued to work, for Integrated

Pest Control under the same restrictions which prohibited him from working for FedEx Ground.

Thus, the Industrial Commission abused its discretion when it adjusted Roper's FWW and AWW

based upon "special circumstances."

Further, neither the district nor staff hearing officers inquired into the reasons for Roper's

part-time employment with FedEx Ground. For example, the record has not been sufficiently

18432145v1

developed to determine whether Roper was working part-time for FedEx Ground (1) in order to

devote time to developing his own business; (2) because only part-time work with Integrated

Pest Control was available (Roper was earning substantially more from Integrated Pest Control

than FedEx Ground); (3) or because Roper's part-time position with FedEx Ground is inherent in

the nature of the employment. Thus, the Industrial Commission abused its discretion by

aggregating Roper's wages based on his part-time work without inquiring into the reasons for his

part-time employment. The Industrial Commission's conclusion that "special circumstances"

existed simply is not sufficient without further findings and explanation.

C. Proposition of Law No. II: FWW can be adiusted only under thelimited circumstances set forth in O.R.C. 4123.61.

FedEx Ground is entitled to a writ of mandamus because there is no legal basis for

adjusting Roper's FWW. The Industrial Commission erred when it adjusted Roper's FWW

based upon "special circumstances" because the "special circumstances" rule does not apply to

FWW. The appellate court acknowledged that the "special circumstances" rule does not apply to

FWW, but erroneously adjusted Roper's FWW based upon a rescinded Industrial Commission

resolution that, even when in existence, provided no mechanism for adjusting FWW.

Ohio Revised Code § 4123.61 provides that the Industrial Commission may calculate an

AWW that differs from the standard calculation if "special circumstances" exist. Ohio Revised

Code § 4123.61 does not provide similar authority for calculating FWW. Rather, FWW may be

adjusted only when the employer is working short time in order to divide work among the

employers. R.C. § 4123.61. There is no record evidence to indicate the Fed Ex Ground has

working short time. Accordingly, the provisions of R.C. § 4123.61 do not apply.

The Ohio Supreme Court has repeatedly held that neither the courts nor the Industrial

Commission are entitled to "read into a statute words that are not contained therein." State ex

19432145v1

rel. McDulin v. Indus. Comm. (2000), 89 Ohio St.3d 390 at 392, 2000-Ohio-205, 732 N.E.2d 367

citing Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, 288, 677 N.E.2d 795. Thus,

there is no legal authority for adjusting Roper's FWW based upon "special circumstances."

The appellate court concluded that the Industrial Commission was entitled to adjust

Roper's FWW based upon Joint Resolution No. R80-7-48. However, R80-7-48 was superseded,

in part by (1993) Am. Sub. H.B. No. 107, 145 Ohio Laws, Part II, 2990, effective October 20,

1993 and later rescinded by the Industrial Commission. State ex rel. Taylor (Sept. 14, 2006),

Franklin No. 05AP-803, 2006-Ohio-4781. Thus, R80-7-48 is no longer effective. Even when it

was in effect, R80-7-48 was limited to providing guidance for the initial calculation of FWW. It

did not provide a mechanism to adjust FWW. Accordingly, there was no legal basis for the

appellate court's refusal to issue a writ.

Accordingly, FedEx Ground is entitled to a writ of mandamus because the Industrial

Commission abused its discretion when it applied the "special circumstances" provisions of R.C.

§ 4123.61 to Roper's FWW. There is no legal basis for adjusting Roper's FWW.

CONCLUSION

For all of the foregoing reasons, FedEx Ground Package Systems, Inc. respectfully

requests that this Court issue a writ of mandamus ordering the Commission to vacate its June 29,

2007 order and to enter a new order denying Roper's request to adjust his AWW and FWW or,

in the alternative, issue a limited writ of mandamus ordering the Industrial Commission to vacate

its order, to conduct a further hearing on the matter, and to issue an order which complies in all

respects with the requirements of the law.

20432145v1

Respectfully submitted,

EASTMAN & SMITH.L ^D.

LvxJohn T. Landwehr (0021711)Nicole A. Flynn (0074196)Mark A. Shaw (0059713)One SeaGate, 24th FloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Fax: (419) 247-1777

Attorneys for AppellantFedEx Ground Package System, Inc.

PROOF OF SERVICE

A copy of the foregoing Merit Brief has been sent by ordinary U.S. Mail this

''t'11 day of September, 2009 to Theodore Bowman, Esq., 3516 Granite Circle, Toledo, Ohio,

43617, attorney for Appellee Christopher Roper and to Gerald Waterman, Assistant Attorney

General, Workers' Compensation Section, 150 E. Gay Street, 22nd Floor, Columbus, Ohio

43215, attorney for Appellee Industrial Commission of Ohio.

Attorney for AppellantFedEx Ground Package System, Inc.

21432145v1

APPENDIX

22432145v1

S-S-3-S-S-S-S-S-3-3-S-S-S-S-S-S-s-S-S-S-S-3-S-Sz4-S-S-S-S-S-9-S-S-S-S-S-S-6-s-S-Sti3-S-S-S-3-S-S-S-3-S-3-5-5

IN THE SUPREME COURT OF OHIO

S-S-S-S-S-S-S-S-S-3-S-S-3-3-S-S-S-3-S-3ti5-3-S-S-3-S-3-S-S-S-S-S-S-S-3-8-S-S-S-S-S-S-S-S-S-S-S-S-S-S-3-S-S-S

State of Ohio, ex rel.FedEx Gxound Package System, Inc.,

Appellant,

V.

Industrial Commission of Ohio

and

Christopher J. Roper,

Appellees.

0-9-0918 -On Appeal from the Franklin CountyCourt of Appeals, Tenth Appellate District

Court of Appeals Case No. 07AP-959

s-s-s-s-s-s-s-s-s-s-s-s-3-s-s-s-s-s-s-s-s^S-s-s-sv^-s-s-s-s-s-s-s-s•Sts-s^s-s-s^s-s-s-s-3-s-s-s-s-s-s-s-s-s

NOTICE OF APPEAL OF FEDEX GROUND PACKAGE SYSTEM, INC.

s-S-s-S-s-S-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-SzS-s-s-s-s-s^s-s-s-s-s-s-s-ssS-s-s-s-s-s-s-s

John T. Landwehr (0021711)NicoIe A. Flynn (0074196)Eastman & Smith Ltd.One SeaGate, 24th FloorP.O. Box 10032Toledo, Olito 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777Counsel for Appellant,FedEx Ground Package System, Inc.

Ci;^it^cc^raau^rO R Or al: oH a

Theodore A. Bowman (009159)Gallon, Takacs, Boissoneault &Schaffer Co. L.P.A.3516 Granite CircleToledo, Ohio 43617Telephone: (419) 241-7900Counsel for Appellee,.ChrIstopher J. Roper

Gerald H. Waterman (0020243)Assistant Attorney GeneralWorkers' Compensation Seetion150 East Gay Street, 22"d FloorColumbus, Ohio 43215Telephone; (614) 466-6696Facsimile: (614) 752-2538Counsel for Appellee,Industrial Commsssion of Ohio

Kotice of Anneaiof FedEx Ground Packaee Svsteni: Inc.

Appellant FedEx Ground Package System, Inc. hereby gives notice of appeal to

the Supreme Court of Ohio from the Judgment of the Fianklin County Court of Appeals, Tenth

Appellate District, entered in State of t]hio, ex rel, FedEx Grouad Paekage System; Inc. v.

Indttstrlal Commission, et at, Court of Appeals Case No. 07AP-959 on April 9,2009.

This case originated in the court of appeals and is, therefore, an appeat of right

pursuant to S.Ct. Prac. R. II §t(A)(3).

Respectfully submitted,

BASfMAN.& SNIITH LTD.

John T T a flwehr (0021711)Nicole A. Flynn (0074196)One Sea(iate, 24thFloorP.O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Fax: (419) 247-1777

Attoineys for AppellantFedEx Ground Package System, Itic.

2

1)

PROOF OF' SERVICE

A copy of the foregoing Notice of Appea[ has been sent by ordinaiy U.S. Mail this 14'

day of May, 2009 to Theodore Bowman, Esq., 3516 Granite Circle, Toledo, Ohio, 43617,

attorney for Appellee Christopher Roper and to Geraid Waterman, Assistant Attorncy Oeneral,

Workers' Compensation Section, 150 E. Gay Street, 22"d Floor, Columbus, Ohio 43215, attorney

for Appellee Industrial Commission of Ohio.

AttornA3^!x.AppellantFedEx Ground Package System, Inc.

3

IN THE COURT OF APPEALS OF OHIOF`II_

TENTH APPELLATE DISTRICT t^u:p ^ r;,. _ i:;•.i:. . • ..;•i

State of Qhio ex ret.f1; 3: ^rrFedEx Ground Package System, Inc., 2 V {I'k -

CLERli G^' CJJRTSRelator,

V. No. 07AP-859

Industrial Commfssion of Ohio (REGULAR CALENDAR)and Christopher J. Roper,

Respondents.

JUDG E E TR

For the reasons stated In the opinion of this court rendered herein on

April 2, 2009, relator's first objection Is overruled, relator's second objection Es sustained

in part, and the commission's objection is sustained: We adopt the mpgEstrate's ffndings

of fact but reject the conclusions of law. It Is the judgment snd order of this court that

the requested writ of mandamus Is denied. Costs shall be assessed against relator.

Withln three (3) days from the filing hereof, the clerk of this court Is hereby

ordered to serve upon all parties not In default for failure to appear notice of this.

judgment and Its date of entry upon the journaiy

dudge Patd^ M. McGrath1'..___ /1

Judgeilsa L. Sadler

Judge Roger L: Kline, of the FourthAppellate Dlstrlct, s(tting by assignment inthe Tenth Appellate Distrtct.

dl ^'^^.^[7IN THE COURT OFAPPEALS OF OHIO I ^fAhhflNCA Ullf^$

TENTH APPELLATE DISTRICT,, 2019 ^fW -2 pM ir2s

Slate ofdhloexrei. CLERK OF COURrS °FedExpround Package System, ino.,

Relator,

v. No. 07AP-959

tndustrial Commission of Oh1o (REGUTAR CALt=NbAR)and ChrlstopherJ. Roper,

Respondents.

OPINION

Rendered on Apr112, 2009

Eastman & Smith Ltd., John T. Landwehr, Ntcole A. Ffynnand MarkA, Shaw, for relator.

Rlcharr! Cordray, Attorney Generdl, and Oerafd H.Watemsan, for respandent Industrial Commleslon of Ohio.

Galfon, Takacs, Bolssoneaalt & Schaffer Co., L.P.A„ andTheodore A. Bowtnan, for respondent Chrtstopher J. Roper.

IN MANDAMUSON OBJECTIONS TO THE MAGISTRATE'S DECISION

MaGRATH, J. ,

(9[i} Relator, FadEx Ground Package 3yetem, tno. ("FedE'x Ground"),

commenced this orlgtnal action requesting that thls court Issue a writ of mandamus

ordering respondent Industrial Commiselon of Ohio {"commisston"} to vaoste its order

setting the average waekiy wage .("AININ") and the fuli weekly wage ("FVU1M) of

No.07AP-9b9 0V 2

respondent Christopher J. Roper ("claimant") at $417.05 and $457.36 respectively, and to

?ent6r ari order setting AWW and FWW without regard to the wages claimant earned In. .,

0oncurrr^nt di'ssimilar empioyment during the year prior to the date of injury.

{9[2) This court referred the matter to a magistrate of this court, pursuant to

C€v.R. 53 and Loo.R. 12(M) of the Tenth District Court of Appeals. The magistrate Issued

a decision, Including f€ndings of fact and conclusions of law, which €s appeuded to this

opinion. In his decislon, the magistrate essentially concluded that the commission did not

abuse its discretion In setting c€atmant's AWW and FWW at the amounts noted above.

The magistrate therefore recommended that this court deny reiator'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.

{9[3) FedEx Ground's two objections to the magistrate'a concluslons of law are

as follows:

1. The Mag€strate,erred in concluding that the Ohio SupremeCourt's Interpretation of "average weekly wage(j" In State exreL Smith v. Indus. Comm. (1933), 127 Ohio St. 217 does notprohibit the aggregation of wages from dissimliar concurrentemployment.

€I. The Maglstrate erred In finding that special circumstanceswarrant the adjusiment of Roper's Average Weekiy Wage andFull Weekly Wage.

(141 The commisslon's objection states:

The magistrate erred In not finding that the IndustrialCommission's computations of the average weekiy wage andthe full uveekiy wage were In accordance with the standardformulae for these caiculations, and d€d not require

No. 07AP-959 . 3

consideration of the special circumstances provision of R.C.4123.61.

{,15} Before anaiyzing these objections, we will briefiy 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 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 seif-insured employer, for "lumbar strain/sprain; L4-5 disc

protrusion:" After FedEx Ground was unable to accommodate ciaimant's medical

restrictions, It began paying temporary total disability ("TTD") compensation to ciaimant.

{9[6} In caicuiating ciaimanYs AWW and FWW, FedEx Ground only took Into

account 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 ciaimant's AWW and FVVW in.a manner that took Into account ciaimant's wages

from Integrated. The DHt? reasoned that there were "special circumstances" that

necessitated the recalculation. Relator appealed to a staff hearing officer ("SHd"), who

Issued an order that also reflected a finding of "special circumstances" and recalculated

ciaimant's AWW and FWW in a manner that accounted for ciaimant's wages wRh 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.

No. 07AP-989 4

{y[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 Ohlo St. 217, and this court's decision In Lipsky v. Qarry

(Dec. 11, 1900), Franklin App, No. 90AP-07. Upon analyzing the statutory and case law,

the magistrate concluded that neither Smith nor 1.lpsky prohibited the commission's

decislon 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. 4123.81 requires inciusion of wages from FedEx Ground and Integrated In the AVVW

caiculation,

{y[ti} By its objections to the magistrate's decision, t'edEx Ground argues that the

magistrate erred In concluding that Smith does not prohibit the aggregatton of wages from

dlsslmilar concurrent employment for purposes of determining the approprlate AWW.

FedEx Ground further argues that the magistrate erred In concluding, that "specia4

circumstances" warrant the adjustment of claimant's AWW and FWW.

{19} R.C. 4123.61 currently states:

The average weekly wage of an Injured employee at the timeof the ]njury """ Is the basis upon whioh to compute benefits.

In cases of temporary total disabiiity the compensation for thefirst twelve weeks for which compensation Is payable shall bebased on the full weekly wage of the claimant at the time ofthe Injury or at the time of the disability due to occupationatdisease begins[.]

Compensation for all further temporary total disabiiity shali bebased as provlded for permanent disability claims.

4

No. 07AP-959 5

In death, permanent total disability claims, permanent partlaldisabllity claims, and Impairment of earnings claims, thecialmant"s or the' decedent's average weekly wage for theyear preceding the Injury or the date the disablllty due to theoccupational dtsease begins Is the weekly wage upon whichcompensation shall be based. In ascertalning the averageweekly wage for the year previous to the injury, or the datethe disability due to the occupatlonal disease begins anyperiod of unemployment due to sickness, industrialdepression, strike, lockout, or other cause beyond theemployee's confrol shall be eliminated.

In cases where there are special circumstances under whichthe average weekly wage cannot justly be determined byapplying this section, .the administrator of workers'compensation, in determining the average weekly wage insuoh cases, shall use such method as will enable theadministrator to do substantial justice to the claimants[.]

{9[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 Saction 1465-

84, General Code, the predecessor to R.C. 4123.61, "means 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?" Id. at 220. The Smith court, whlle

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 remuneratlon received from both employers. The Smith court held as follows:

"We hold, upon the facts In these cases, that the relators are not entitied to awards by the

Industrial Commission, as respondent, on a basis Including thelr earnings as a baker and

restaurant worker, respectiveiy." ld. at 222. In other words, the Smith court "found that,

n

No. 07AP-959 6

under GC § 1965-84, the predecessor to R.C. 4123.61, the term.'average weekly wage'

was-not intended to lnciude earnings received by the claimant in an occupation separate

and distinct from the one in whlch he was injured:' Llpsky, citing Sm/th.

[111) When Smith was decided, Section 1465-84, General Code, provided, In Its

entirety, as follows: "The average weekiy wage of the Injured person at the time of the

Injury shali be taken as (he basis upon which to compute the benefits." Since the Smith

decision, the General Assembly has signiffcantly expanded upon this -language. In

addition to retaining the language from SectEon 1465-84, General Code, 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 "ln cases where there are special circumstances under which

the average weekly wage cannot justiy be determined by appiying this section, the

administrator of workers' compensation, in determining the average weekly wage in such

cases, shail use such method as will enable the adminlstrator to do substantial justice to

the ciaimants[.]"

[y(12] Because the speclal circumstances language In the applicabie 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 spectal circumstances

provision In the statute required the inciusion of ciaimant's wages with FedEx Ground and

Integrated In setting ciaimant's AWW and FWW. On thls basis, we find that reiators first

objection to the magistrate's decision is without merit.

[q[13} In both reiator's second objection and in the commission's objection, the

parties argue the SHO abused Its discretion In conciuding special circumstances warrant

No. 07AP-959 7

the adjustment of ciaimant'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

circumstancej.]' " State ex rel Logan v. fndus. Comm. (1995), 72 Ohlo St.3d 899, 601

(noting that though part-time employment is not per so a special circumstance, In some

part-time situations, special circumstances may Indeed exist). Without more, the SHO's

conciusory finding of speciai circumstances based only on the ciafmant's being employed

at two part-time Jobs does constitute an abuse of discretion. Therefore, to this extent,

reiator's second objection and the commission's objection are sustained.

{114) However, the commfssion goes on to argue that even though the SHO

abused Its discretlon In finding special clrcumstances, Issuing a writ is not necessary in

thls Instance because the SHO was correct to utilize 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.

{1151 The "'standard formula for establishing [average weekiy wage] is to divide

ciaimant's earnings for the year preceding In]ury by fifty-two weeks.' " State ex rel.

MoDulln v. Indus. Comm. (2000), 89 Ohlo St.3d 390, 391, quoting State ex rel. Ctark v.

Indus. Comm. (1994), 89 Ohio St.3d 663, 565. Pursuant to R.C, 4123.61, when "speoiai

circumstances" render the traditional formula untenable, the commission may devlate

from the standard AWW formula. Mcpulin, at 393. Although "special circumstances" Is

not defined by the statute, Its appiication has been limited to uncommon situations. State

ex ret. Wireman v. Indus. Comm (1990), 49 Ohio St.3d 286, 288. Moreover, in oatculating

No. 07AP-959 1 8

AWW, the foliowing considerations dominate: tha AWW must do substantial justice to the

ctaimant, and it should not provide a windfall. Id. at 287.

fq[16} In Logan, supra, the cialmant was injured while in the course of and arising

out of his employment. The commission derived at claimant's AWW by dividing his total

wages for the year prlot to the Injury by 62. The claimant argued he was only employed

full time for 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 cialmant's unemployment, but Included amounts earned at this part-time employment.

The claimant flied a mandamus actlon In this court contending his AWW was too low.

This court rejected claimant's attempt to exclude the weeks of part-time employment.

The Supreme Court of Ohlo stated, "(w1e also reject claimant's entreaty to exclude his

weeks of part-time work. Part-time work Is not Ilsted among those situations that R.C.

4123.61 decreed must be excluded from the AWW computation. Elimination, therefore,

can be accomplished only through the'spectal clrcumstances' provislon of R.C. 4123.81:'

Id. at 601. Thus, In Logan, the court'sanctioned the commission's Inclusion of wages

from concurrent employment to arrive at the claimani's AWW under the statute's standard

formula.

{117} Additionally, In State ex rel. Powell v. C.R. O'Nefl & Co., 116 Ohio St.3d 22,

2007-Ohio-6504, the Supreme Court of Ohio granted a writ of mandamus to a claimant

because the commission failed to include miscellaneous wages the claimant had earned

from conourrent seif-employment and thatwere reflected on IRS 1099 forms. The court

began Its analysls of the AWW calculation issue by stating, "[t]here is no dispute that

evidence of Powell's self-employment income for the relevant periods "`" was not

1 7

No. 07AP-959 9

consldered. There Is also no dispute that the evidence Is materlal, 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 recognlzed that the standard formula for calculation of AWW [ncludes all

eamings 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.

{9[18} Given the foregoing, even though the commission abused Its discretion In

seemingly deciaring part-time employment to be a special circumstance per se, because

the AWW caloulation Is nonetheless In accord with R.C. 4123.61, Issuing a writ of

mandamus ls not warranted In thls Instance.

{119} Turning to FWW, the magistrate erred !n applying the speclal circumstances

provision to this calculation because the provision only applies to the calculation of FWW

where "there are special alroumstances under whlch the average weekly wage cannot

justly ba determined:" Id. Because the AWW can be justly detennined using the standard

calculation, application of the special circumstances provislon Is mispiaced. The Oeneral

Assembly did not define FWW but reserved to the commission the task of calculating It.

To calculate FVVW In cases where no special circumstances exist, the commisslon may,

in its discretion, utilize joint resolutlon No. R80-7-48, which It promulgated jointiy with the

Ohio Bureau of Workers' Compensation. State ex ret. Taylor v. tndus. Comm., 10th App.

No. 05AP-803, 2006-Ohio-4781, at ¶14; State ex reL Huntsville v. Indus. Comm., 10th

App. No. 04AP-281, 2004-Ohio-6615, at ¶41. Having done so In this case, the

commission did not abuse its discretion.

{120} In summary, relator's first objectlon Is overruled, relator's seeond objection

Is sustained In part, and the commission's objection to the mag[strate's decision is

No. 07AP-959 10

sustained. We adopt the magistrate's findings of fact, but reject the conclusions of law.

Accordingiy, we deny the requested writ of mandamus.

ObJectlons sustained In part and overruled In part; wrtt denled.

SADLER and KLINE, JJ., concur.

KLINE, J., of the Fourth Appellate Dlstrict, sitting by assign-ment In the Tenth Appellate District.

No. 07AP-959 11

APPENDIX

IN THE COURT 0r APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio ex ref.FedEx Ground Package System, Inc.,

Relator,

v. No. 07AP-959

industrial Commission of Ohlo (REGULAR CALENDAR)and Christopher J. Roper,

Respondents.

MAGISTRATE'S DECISION

Rendered August 15, 2008

Eastman & Smith Ltd., John T. Landwehr, Nlcole A. Flynnand MarkA. Shaw, for relator.

1Vancy H. Rogers, Attorney General, and Gerald H.Waterman, for respondent Industrial Commisslon of Ohio.

Gallon, Takaas, Bolssoneault & Sohaffer Co. L,P.A.; andTheodore A. Bowman, for respondent Christopher J. Roper.

IN MANDAMUS

(1121) In this orlginal action, relator, FedEx Ground Package System, Inc. ("FedEx

Ground" or "relator"), requests a w(t of mandamus ordering respondent Industrial

Commission of Ohio ("commission") to vacate Its order setting the average weekly wage

("AW1M') and the full weekly wage ("FWW") of respondent Christopher J. Roper

1 C

No. 07AP-959 12

("cialmant") at $417.05 and $457.36 respectiveiy, and to enter an order setting AWW and

FWW without regard to the wages claimant earned In concurrent dissimilar employment

during the year prior to the date of Injury.

Findinas of Faot:

{9[22} 1. In December 2004, claimant began working at FedEx Ground as a

package handler. He worked part-time on average of 20 to 25 hours per week. The job

required him to remove packages from a conveyor belt and then load them into the

proper trailer. The packages wefghed anywhere from two to 180 pcunds.

{q[231 2. in April 2006, claimant began concurrent employment at Integrated Pest

Control ("Integrated") as a wildilfe control operator. This job required claimant to spray

floors and baseboards. Prior to his employment at Integrated, claimant was self-

employed as a wildlife control operator. Claimant's federal tax return for the year 2006

shows that he operated his business at a loss.

{924} 3. On October 24, 2006, claimant sustained an Industrial Injury while

employed as a part time package handler for FedEx Ground. Relator, a seif-Insured

employer under Ohlo's workers' compansation iaws, certified the Industrial claim for

"lumbar strainJsprain; L4-5 dlso protruston."

{y[251 4. FedEx Ground calculated AWW by dividing claimant's total earnings at

FedEx Ground durfng the year prfor to the date of Injury by. 62 weeks. A FedEx Ground

cornputation sheet shows that claimant eamed $8,343.55 at FedEx Ground during the

year prior to the date of injury. Thus, relator set AWW at $160.45 ($8,343.55 + 52 =

$160.45).

No. 07AP-959 13

{9[26} 5. Claimant earned $260.80 at FedEx Ground during the week prior to the

date of injury. Relator used this flgure'for FVWV because claimants total earnings for the

six week period prior to the lnjury date dlvided by six produced a figure less than the

$250.80 claimant earned during the one week prior to the date of injury.

{9[271 6. Following the Industrial Injury, relator was able to • accommodate

clalmant's medical restrlctions for a while. However, effective January 24, 2007, relator

began paying claimant temporary total disability ("TTD") compensation because It could

no longer accommodate the restrictlons.

{q(28} 7. Clalmant earned approximately $13,220.88 from Integrated during the

year prior to the date of Injury.

(129} 8: On April 11, 2007, claimant moved that his AWW and FWW be reset by

the commission.

19[30} 9. Following a May 15, 2007 hearing, a district hearing officer ('DHO")

Issued an order granting ciaiment's motion and resetting AWW and FWW respectively at

$417.05 and $467.36. The DHO's order expiains:

The Full Weekly Wage (FW11U) is SET at $457.36 basedupon $2,744.20 divided by 6 weeks.

The Average Weekly Wage (AWW) Is SET at $417.05 basedupon $21,686.43 divided by 52 weeks.

The Industrial Commisslon Invokes special clrcumstances Inorder to do substantial justice to the Injured worker. Injuredworker was working at 2 different Jobs during the year priorto Injury and also had his own business. The buslness didnot generate any net income; therefore, no figures from theself-employment are considered. The wages from both theInstant employer and the other employer are added togetherto do substantial justice. The empioyer's argument that thecase of Lloskv vs. Patricla Barrv [(Deo. 11, 1990), FranklinApp. No: 90AP-071 demands that only wages from simllar

17

No. 07AP-959 14

occupations be added together is found not well taken. In thecase Viliage of Huntsviiie vs, Indus. Comm. [Frankiin App,No. 04AP-281, 2004-Ohio-8615], wages from dissimilaroccupations were added together for both FWW and AWWcalculations In order to do substantiai justlce,

(Emphases sic.)

{131} .10. Relator administrativeiy appealed the DHO's order of May 5, 2007,

{1[321 11. Following a June 29, 2007 hearing, a staff hearing officer ("SHa")

Issued an order stating that the DHO's order Is modified. The SHO's order explains:

The order of the District Hearing Officer, from the hearingdated 6115l07 Is MODIFIED to the following extent.Therefore the Injured worker's request contained on a C-88motion, dated 4111/07, to reset lhe Average Weekly Wage(AWW) and Full Weekly Wage (FWW) rate is GRANTED.

The Hearing Officer finds special circumstances to warrantthe re-calculation of the AWW and the FWW settings.

Speciflcally, the Hearing Officer finds speclal circumstancesin that during the period of the year prior to injured worker'sinjury In this ciaim, he was employed, part-time, for theinstant employer, and was also employed, part-time, with acompany named Integrated [P]est Control. He also wasoperating his own business, Affordable Animal Removal, at aloss during that time frame.

The Headng Officer finds that In order to do substantialjustlce to Injured worker, the wage from both part-timeemployers must be utilized In caicuiating the Ft+UW andAWW settings. The Hearing Officer also finds that utilizingthe wages from both employers would not provide theInJured worker with a windfall. Therefore, both requirementsof State ex rei..Wireman vs. lndus. Comm. (1990) 49 OhioSt. 3d 283 have been met. The Hearing Offlcer notes that aregular work week of less than 40 hours may be considereda special circumstance which has required a differentcalculation.

Therefore, the Hearing Officer orders the the [sio] FWW ratebe SET at $457.36 based upon $2,744.20 divided by Bweeks.

No. 07AP-959 15

The AWW rate is SET at $417.05 based upon $21,686.43divided by 52 weeks, The figure of $21,686.43 Is uti€€zed byadding the wages for the year prior from Fedex andIntegrated (Pjest Control. No wages are utilized from theAffordable Anlma€ Removal company as €njured worker didoperate that company at a loss In the year prior to h€s €njury.

Therefore, the Hearing Officer finds that the resetting of theAWW and FWW rates will prov€de Injured worker w€thsubstantial justice as required by O.R.C. 4123.61 and thepreviously paid compensation is ordered adjustedaccordingly.

Thls finding Is based upon the wage Information submitted tothe file, and Injured workers testimony at hearing. •

(Emphases s€c.)

{%33} 12. On July 27, 2007, another SHO refused relator's administrative appeal

from the SHO's order of June 29, 2007.

{1134} 13. On September 22, 2007, the three-member commission ma€ted an

order denying retator's request for reconsideration.

flJ35} 14. On November 19, 2007, relator, FedEx Ground Package System, Inc.,

filed this mandamus action.

Concluslons of E.aw:

{136} It Is the magistrate's decision that this court deny re€ator's request for a writ

of mandamus, as more fully expiained be€ow. -

(137) R.C; 4123.61 currently states:

The average weekly wage of an €njured employee at the timeof the injury or at the time d€sabllity due to the occupat€onaldisease begins is the basis upon which to compute benefits.

In cases of temporary total disability the compensetion forthe first twelve weeks for which compensation is payableshall be based on the full weekly wage of the claimant at the

No. 07AP-959 16

time of the in]ury or at the time of the disability due tooccupational disease begins[.] * * *

Compensation for all further temporary total disability shatlbe based as provided for permanent disabiiity claims.

-in death, permanent total disability cialms, permanent partialdisablllty claims, and Impairment of earnings claims, theciafmant's or the decedent's average weekly wage for theyear preceding the injury or the date the disabitlty due to theoccupational disease begins Is the weekly wage upon whichcompensation shall be based. In ascertaining the averageweekly wage for the year previous to the Injury, or the datethe disabllity due to the occupational disease begins anyperiod of unemployment due to sickness, industrialdepression, strike, lockout, or other cause beyond theempioyee's control shall be eliminated.

In cases where there are special circumstances under whichthe average weekly wage cannot justly be determined byappiying this section, the administrator of workers'compensation, In determining the average weekiy wage Insuch cases, shall use such method as will enable theadministrator to do substantial justice to the ciaimants[.] * * *

{y[38} In State ex rel. Smith v. Indus. Comm. (1933), 127 Ohio St. 217, 220, the

Supreme Court of Ohlo had occasion to interpret and apply the phrase "average weekly

wages" as it appeared In Section 1465-79, General Code. According to the Smith court,

the statute read:

In case of temporary disabllity, the employee shall receivesixty-six and two-thirds per cent. of hls average weeklywages so long as such disabitity Is total.

{139} The Smith court also noted that Section 1465-84, General Code, read as

follows:

The average weekly wage of the Injured person at the timeof the injury shall be taken as the basis upon whlch tocompute the benefits.

Id.

20

No. 07AP-959 17

{540} In Smith, while employed as volunteer firemen, the relators were seriousiy

Injured while en route to a fire. The relators were also concurrently employed as a baker

and restaurant worker respectively. The Smith court observed that It cannot ser€ous€y be

contended that employment as a baker and restaurant worker are In any way related to

that of volunteer firemen.

{141} As the Smith court put it, does the phrase "average weekly wages" mean

the amount received by the relators as firemen, or does It Include the amount received as.

firemen and also the amount accruing from regular occupations?

{q[42} The Smtfh court recognized that the question to be dec€ded was new In

Ohio. It noted that courts of other jurisdictions had held that where an employee engaged

in similar work for two or more employers at the time of an injury, his compensation

should be based on the amount which he usually earned In the parttcu€ar kind of

employment rather than on the amount he had been receiving from the particular

employer In whose service he was engaged at the tlme of Injury. Thus, the Smlth court

recognized the existence of a so-called similar employment doctrine held by other state

Jurisdictions In AWW cases.

{1431 The Smith court explained its €nterpretation of the phrase "average weekly

wages":

While It has always been the policy of this court to construeliberally the provisions of the Workmen's Compensation ActIn favor of injured employees and their dependents, weshould have to resort to a dubious and forced construction ofour statutes to hold that the phrase "average weekly wages"as used thereln was intended to cover both the earnings ofan employee In the particular work he was performing wheninjured and the remuneration received in a dlstinct andseparate employment, In whlch he was generally engaged,

a,

No. 07AP-959 18

and which was not connected In any way with theemployment In which the injury was suffered.

Id. at 221.

{9[44} The Smith court held:

We hold, upon the facts in these cases, that the relators arenot entitled to awards by the Industrial Commission, asrespondent, on a basis Including thetr earnings as a bakerand restaurant worker, respectively-

Id.

{qj45} The Smith courf s syllabus reads:

In determining workmen's compensation based upon theaverage weekly wage under sections 1465-79 and 1465-84,General Code, the Industrial Commisslon is limited to theaverage weekly wage received in the employment In whichthe Injury occurred, where claimant was injured whlle servingas a member of a volunteer flre department, and was alsogenerally engaged In another separate and distinct line ofwork.

(9[46} In Llpsky v. Barry (Deo. 11, 1990), Franklfn App. No. 90AP-07, this court

had occaslon to address the Smith case In a mandamus action brought by relator, Raiph

Llpsky, who was Injured while tending bar at Lee's Cafb. The ciaim was allowed and

Llpsky was awarded TTD compensation. An Ohio Bureau of Workers' Compensation

ciaims examiner set Lipsky's AWW at $100 based upon Llpsky's yeariy Income at Lee's

CaM divided by 52 weeks.

(147} Lipsky moved for a recalculation of his AWW based upon his earnings from

working two days a week at a second bar, Bili's Open Door. A commission hearing officer

reset AWW at $111.65 and the decision was administratively affirmed. The order

contained no reference to the wages Lipsky allegedly earned at Blirs Open Door.

No. 07AP-959 19

(9[48} The Llpsky court noted that one Issue before it was "whether wages

received In employment concurrent with but separate from the employment in which the

Injury occurred are included when calculating the average weekly wage under R.C.

4123.61:" Id, at 2.

t9[49} In addressing the Smith case, the Llpsky court noted that R.C. 4123.61

(formerly General Code § 1465-84) was amended only four years after the Smith decision

was released. At that Eime, the legislature Inserted the paragraph which directs the

commisslon to calcuiate the AVWV by any means which- will enable It to do substantial

Justice to the claimant when special circumstances exist. The Lipsky court then noted

that at least one commentator Is of the opinion that the amendment was Intended to

correct the harsh impact of the Smith case.

(9[50} Citing State ex rel. Wireman v. Indus. Comm. (1990), 49 Ohio St.3d 286,

the Lipsky court, at 3, noted that "[m]ore recent case law" emphasizes that the AWW

must do substantial Justice to the claimant, while avoiding a windfall. The court also noted

that, in Wireman, special circumstances had been found where the claimant had worked

part-time rather than a full-time work week.

{151} The Llpsky court reasoned:

'* " We conclude that R.C. 4123.61 requires thecommisslon when calculating the average weekly wage toconsider all wages earned in concurrent employments, atleast if they are similar to the employment In which theclaimant Is Injured. This concluslon follows both from thelanguage of R.C. 4123.61 and the Smith case, whichrecognlzed the simltar employment doctrine. R.C. 4123.61directs the commission to do substantial justice whencalculating the average weekly wage considering spectalcircumstances. Special or unusual circumstances hava beenfound where the claimant works a part-time rather than afulltime work week. Wireman, supre, at 289.

No. 07AF'-959 20

In thls case, relator is apparently employed part-time by bothLee's Cafe and Bill's Open Docr. This Is a special or unusualcircumstance which the commission Is directed to considerunder R.C. 4123.61. This Is also conslstent with the holdingIn Wireman that the average weekly wage caiculatlon mustdo substantial justice while avoiding a windfall. A windfall willnot result concerning simllar employment as the claimant will.most probably be disabled from both jobs. In any case, If theclaimant Is capable of performing a job slmilar to that Inwhich he was Injured, this fact would support the terminationof temporary total benefits altogether. Aggregatingconcurrent employments creates no more w€ndfall for theclaimant, nor burden on the employer, than using anaverage of the past years wages as Is dlrected by R.C.4123.61.

Moreover, the Supreme Court recognlzed but distinguishedthe simiiar employments doctrine in Smith, supra. Given thisfact and the subsequent amendment of R.C. 4123.61, thestatute at least requires the commisslon to cons€der wagesearned in employment similar to that In whlch the claimantwas injured. As there €s no Indication that the commiss€onconsidered the evidence of relator's employment at Bili'sOpen Door, an abuse of discretion results and furtherconsideration Is warranted.

Id. at 3-4.

[152} Several observations are in order regarding the Smith and Llpsky cases.

First, the Smith decisfion rested on Interpretation of the meaning of the phrase "average

weekly wages." Second, the "special circumstances" provlsion of R.C. 4123.61 was not

In existence at the time of the Smith decislon. Third, while acknowledging the Smith

case, the Ltpsky court found speclal circumstances where concurrent similar

employments exist. Fourth, the Lipsky court was careful not to adopt the Smith doctrine

regarding similar employments. In that regard, the Lipsky court concluded that R.C.

4123.61 requires the commission to consider all wages earned In concurrent

94

No. 07AP-959 21

employments, at least 1f they are similar to the employment In which the claimant is

injured.

{153} In the magistrate's view, gfven the above analysis, neither Smith nor Ltpsky

prohiblt the commission's decision rendered here.

{1154} As thls court held In Lipsky, concurrent ernpioyment can produce the

special circumstances under R.C. 4123.61 that permits the commission to Include wages

from both employments in calculating AWW,

{155} Given Llpskys holding, the Issue here is whether the commission abused

its discretion in determining that special circumstances requires Inclusion of wages from

FedEx Ground and Integrated In the AWW caiculatlon.

{1561 "Special clrcumstances" Is not defined by the• statute, but special

circumstances have generally been confined to uncommon situations. Wi►entan, at 288.

Moreover, special circumstances can be Invoked only if the standard calculation yields a

result that is substantially unjust. State ex ral. Cawthom v. lndus, Comm. '(1997), 78 Ohio

St.3d 112, 116; State exrel. Clark v. Indus. Comm. (1994), 69 Ohlo St:3d 663, 666.

(157} AWW Is designed to find a fair basis for award of future compensatlon.

State ex rel. Riley v. tndus. Comm. (1983), 9 Ohio App.3d 71, 73. 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. E'rkard v. tndus. Comm.

(1988), 66 Ohio App.3d 186, 188.

{g[5s} In calculating AWW, two consideratlons dominate. First, the AWW must do

substantial justice to the claimant. Second, it should not provide a windfall. Wreman, at

287.

No. 07AP-959 22

{159} The SHO's order of June 29, 2007 indicates that the standard catculation

yields a result that Is substantially unjust. As the SHO explained, claimant was employed

part-time at two differentjobs.

{9[60} If the Industrial Injury removes claimant from both jobs, AVVW based

exclusively upon the wages earned at the Job of Injury produces a result that Is

substantlai(y unjust, because 3t does not proximate the average amount that claimant

would have received had he continued working at both jobs after the injury as he had

before the injury. Significantly, under Ohio law, if an Injured worker cannot return to his

former positEon of employment, but continues to work at another Job, he is not entitled to

TTD compensation. State ex ret, Johnson v. Rawac Plating Co. (1991), 61 Ohlo St.3d

599. Therefore, an InJured worker who Is not disabled by the industriai injury from his

other job will not obtain a windfall If AWW Is based upon earnings from concurrent

employment.

C9[61} Thus, as the SHO's order of June 29, 2007 found, the Wireman standard for

speolai circumstances Is met.

{1[62} Accordingly, for all the above reasons, it 1s the magistrate's decision that

this court deny relator's request for a writ of mandamus.

ls/ Ke fvW. Ma.ck&KENNETH W. MACKEMAGISTRATE

NOTICE TO THE PARTIES

Civ.R. 53(D)(3)(a)(1ii) provides that a party shall not assignas error on appeal the court's adoption of any factual finding

n -1

No. 07AP-959 23

or legal conclusion, whether or not specifically designated asa flnding of fact or canclusion of law under Civ.R,53(b)(3)(a)(11), unless the party timely and specificallyobjects to that factual finding or legal conciusion as requiredby Civ.R. 53(D)(3)(b).

The 7ndnatt9alCommission of Obto

RECORD OF PROCEEDINGS

t

Claim N:unber: 06-888289lT-ACC-SI-COV

PCN: 2072281 Christopher J. Roper

CHRISTOPHER J. ROPER3384 OTTO STTOLEDO OH 436P8-I366

Claims Heard: 06-888289

OFfl4'^SFP 22 2007

flivUNv^^ hfAILED 2

Data of In,iury: 10/24/2006 1 Risk Number: 20003838-0

Request For Reconsideration filed by employer on 08/14/2007.Issue: 1 ) Continuing Jurisdiction Pursuant To R.C. 4123.52

2) Full Weekly Wages /Average Weekly Wages

The Request for Reconsideration filed 08/14/2007, by the employer from thefindings mailed 07/27/2007, is denied for the reason-that the request failsto meetthe critaria of Industriai Conmisslon Resolution No. R05-1-02 datedSeptember 6, 2005. ,

Typed By: MS/bbOate Typed: 09/11/2007

The above findings and order vas approved and confirmed by the majority ofthe members.

Gary N. Di Sglio YESChairperson

/,CS--_ e. [ka.-.^Xev n R. Abrams YESCommissioner

Findings Maiied:

A •illiam E. Thompson YES

Commissionor

Executive OYr€etor

ICRECON2 paga 1 ' - ' bb/bb

no

Tbe rn.dastrial Comai3sslon of 05Io

RECORD OF PROCEEDINGSClaim Nunber: 06-888289

The parti'es and representatives Tisted below have bean 6ent this Aacord ofproceedings. If you are not an authoriXed representativo of efther thein,Tured worker or employer, please notify the Industrtai Comission.

06-888289Christopher J. Roper3384 Otto StToTedo OH 43608-1366

Risk No: 20003838-0Fedex Ground Package SystemPO Box 5459Akron OH 44334-0459

10 No: 20511-91Gallon Takaes Boissoneauit & Schaff3516 Granite Cir ,Toledo OH 43617-1172

ID No: 1475-80Broadspire ' •7271 Engle Rd Ste 303Cieveiand UH 44130-8404

ID No: 1646-80Eastman & Smith Ltd •PD Box 10032 •Toledo ON 43699-0032

BWC, LAW DIRECTGR

I

NOTE: INJURED WORKERS, EMPLOYERS, AND'THEIR AUTHORIZED REPRESENTATIVES MAYREVIEW THEIR ACTIVE CLAIMS INFORMATION THROUGH THEINDUSTRIAL COMMISSION WEBSITE AT wxw.ohtote.com. ONCE ON THE HONE PAGE OF 7RE WEB SITE, PLEASE CLICKI.C,O.N. AN F^E IHSTRUCTIDNS FOR OBTAINING A PASSWORD. ONCE YCU HAVEOBTAINEO A PASSWORD, YOU SHDULD BE ABLE TO ACCESS YOUR ACTIVE CLAIM(S). IF YOUHAVE OIFFiCULTY OBTAINING A PASSWORD, PLEASE CONTACT THE INDUSTRIAL CO4I1SSIONHELP DESK AT (614) 644-6595 OR (877) 218-4810 BETWEEN 8 A.M. AND 4:45 P.M,WEEKDAYS.

ICRECON2 Page 2

M 4T,t1 OppotConlCY ^VYa[

•- bb/bb

9Q

The Industrial Commissfon of Ohio

RECORD OF PROCEEDINGS

Claim Number: 06-888289 Claims Heard: 06-888289L7-ACC-SI-COV

PCN: 2071131 Chrfstopher J. Roper

CHRISTOPHER J. ROPER3384 0TT0 STTOLEDO OH 43608-1366

Date of InJury: 10/24/2006 Risk Number: 20003838-D

IC>12 Notice Of Appeal filed by Employer on 07/23/2007.Issuec 1) Fuil Weekly Wages/Average WeekTy Wages

Pursuant to the authority of the Industrial Commission under Ohio RevisedCode 4123..511(E), it is ordered that the Appeal filed 07/23/2007 by theEmployer from the order issued 07/06/2007 by the Staff Hearing Officer berefused and that copies of this order be mailed to aYT interested parties.

ANY PARTY NAY APPEAL AN ORDER OF THE COMMISSION, OTHER THAN A DECISION -AS.TO EXTFI7T OF DISABILITY, TO THE COURT DF COMMON PLEAS WITHIN 60 DAYS AFTERRECEIPT OF TRE ORDER, SUBJECT TO THE i.INITATIONS CONTAINED IN OHXO REVISEDCODE 4123.512.

Date Revievted: 07/20007 'Typed By: bb J. D. StaVridisOate Typed: 07/25/2007 Staff Hearing OfficerFindings Maiied: 07/27/20D7

Eootronicaliy signed by7.1). Stavridls

The parties and representatives listed below have been sent this record of:proceodings. If you are not an authorized representative of either theInjured worker or employer, please notify the Industrial Commission.

06-888289Christopher J. Roper3384 Otto StToledo OH 43608-1366

Risk No: 20003838-0Fedex Ground Package SystemPO Box 5459Akron OH 44334-0459

---- -------- mREFOSE

ID No: 20511-g1Gallon Takacs Boissoneault & 5chaff3516 Granite CirToledo 0H 43617-1172

ID Noc 1475-80Broadspire7271 Eng1e Rd Ste 303Cleveland uN 44130-8404

-'bb76br'T^ -.. . r. .

On

7rie Indealrlal CommLsslon of OLio

RECORD OF PROCEEDINGSClaim Nomber: 06-880289

ID Nos 1649-80Eastman & Smith LtdP0 Box 30032Toledo OH 43699-0032

O1fC, UtW DIRECTOR

SHREFUSE Page 2 bb/bbrl

M iQUal oppat[mfey ppyoyaY

am eosvicv Ynvlder

Thelndus[rfal Commission of Ohio

RECORD OF PROCEEDTNGS

( Claim Number: 06-888289LT-ACC-SI-COV

PCN: 2071131 Christopher J. Roper

CHRISTOPHER J. ROPER3384 OTTO STTOLEDO OH 43608-1366

Claims Heard: 06-888289,'.

Date of Injury: 10/24/2006 Risk Number: 20003838-0

This claim has been previousiy allowed for: LUMBAR SIRAIN/SPRAIN; L4-5DISC PROTRUSION.

This matter was heard on 06/29/2007 before Staff Hearing Officer MaraLanzinger Spidel pursuant to the provisions of Ohio Revised Cede Section4121.35(B) and 4123.511(D) on the following:

IE:-12 Notice Of Appeal of DH0 order from the hearing dated 05/15/2007,filed by Employer on 06/05/2007.Issue: 1) Full Weekly Wages/Average Weekly Wages

APPEAL of DHO order from,the hearing dated O*o/15/2007, filed by Injured^Worker on 06/18/2007.Issue: 1) Full Weekly Wages/Average Weekly Wages

Notices were mailed to the injured worker, the employer, their respectiverepresentatives and the Administrator of the Bureau of Workers'Compansation not less than 14 days prior to this date, and the followingwere present for the hearing:

APPFARANCE FOR THE INJURED WORKER: Injured worker; Mr. BiggertAPPEARANCE FOR THE EMPLOYER: Mr. LandwehrAPPEARANCE FOR THE ADMINISTRATOR: None •

The order of the District Hearing Officer, from the hearing dated 5/15/07is MODIFIED to the following exteat. Therefore the injured worker'srequest contained on a C-86 motion, dated 4/11/07, to reset the AverageWeekly Wage (AW41) and Full Weekly Wage (FWW) rate is GRANTED.\

The Hearing Officer finds special circumstances to warrant there-calculation of tha AWW and the FWW settings.

Specificatly, the Nearing Officer finds special circumstances in thatduring the period of the year prior to Injured worker's injury in thisclaim, he was employed, part-time, for the instant empToyer, and was alsoemployed, part-time, with a company named Intagrated Test Control.. He alsowas operating his own business, Affordable Animal Removal, at a loss duringthat tima frama.

The Hearing Officer finds that in order to do substantial justice toinJured worker, the wages from both part-time employers must beutilized incalculating tha FWW and AWW settings. The Hearing Officer also finds thatutilizing the wages from both employers would not provide the infuredworker with a windfall. Therefore, both roquirements of Sta'te ex ra1.Wireman vs. Indus. Comm. (1990) 49 Ohio St. 3d 283 have-been mat. TheHearing Officer notes that a regular work week of less than 40 hours may beconsidered a special circumstance which has required a different.

------- -Page . .. .1- .... -- .. ' i-^`- pae7p^e ^.

111)

TheInduslrial Commission of Ohio

RECORD OF PROCEEDINGSC1aim Number: 06-888289

calculation. •

Therefore, the Hearing Officer orders the the fWW rate be SET at $457.36based upon $2,744.20 divided by 6 weeks.

The AWif rate is SET at $417.05 based upon $21,686.43 dipided by 52 weeks.The figura of S21,686.43 is utilized by adding the wages for the year prior'fram Fadex and Integrated Test Contral. No wages are utilized from theAffordable Animal Removal compan y as in,iured worker did operate thatcompany at a loss in the year prior to his injury.

Therefore, the Hearing Officer finds that the resetting of the AWW and FWNrates wili provide in,iured worker with substantial justice as re quired byo,R.C. 4123.61 and the previously paid compensation Is ordered adjustedaccordingly.

This finding is hasad upon the wage information submitted to the file, andinjured worker's testimony at hearing.

All evidence was reviewed and considered.

An Appeal from this order may be filed within 14days of the receipt of theorder. The Appeal may ba filed online at www.ohioic.com or the Appeal(IC-12) may ba sent to the Industrial Commissiod of Ohio,Toledo District Office, One Govarnment Center, Suite 1500, Toledo OH 43604.

T ed-B • paeOate Typed: 07/02/2007

Findings Mailed; 0710612007

Mara Lanzinger SpidelStaff Hearing Officer

Edectronica3ly signedbyMara Lsnzinger Spidol

The parties and representatives listed below have been sent this record ofproceedings. If you are not an authorized representative of either thein,lured worker or employer, please notify the Industrial Commission.

06-888289Christopher J. Roper

• 3384 Otto StToledo OH 43608-1366

Risk No: 20003838-0Fedex Ground Package SystemPO Box 5459Akron OH 44334-0459

SHO1

IO No: 20511-91Gallon Takacs Boissoneault & Schaff3516 Granite CirTo7edo ON 43617-1172

10 No: 1475-80Crawford & Company7271 Engle Rd Ste 303Cleveland OH 44130-8404

ID Noc 1649-80Eastman & Smith LtdPO Box 10032Toledo OH 43699-0032

BWC, LAW DIRECTOR •

Page

• Wla 89n'!ct! fieYluce

R7a Indutvial Cammisslon eT otlo

RECORD OF PROCEEDINGSf mfjes-m

Clais Nusbars 06-888299 Clai.t Nesrd: 06-#66289HYACC-SI-COY

pCilc 2071131 Chrlstophar J. Ropar

FASTRIN & SyI711 LTOPO ECI 10032TOLECO pt 436g6-O032

Dah of Intury: 10124/2006 Risk Hunberi 20003832-0

tha^"a^twirw

JUN 9 8 iW1

This ela[. has baen pravlousiy allousd for: 1lFBAR S16AIH/SPAAINO 44-5 DLSCpRO1RgSI0N.

This rattar was hsard on 06/16/2007 bsfora Ofstrfat Hoartn p Officer LynneRolts pursuant to tlua provlsfons of Ohio Rovisad Code Soatfan 4121.34 and4123.611 on the fottox{ngi

C-66 Not)ion filed by Injurad Worker on 01/11/2007.Issue: 1 Full Veekly itiges/Average H+akly Yagas

Notices were ¢d7ed to the inlurod yorkar, the aoployer,thtir, raspectiverepras4nt►tivas and the Adxtnistrator of the Bursau of Workers' Compansetion;^ ^=^it^Mn 14 days prfa ► to thts date, and the following inre presant for

APpFARq1CE FOR T7H6 INJpOpR8y0 VCIRkBts In,iund workarc Nr. Cooper'

1PppERbHCE FOR THE NISTRATs Nonr

It is tha ordar of the [listrtet Haaring gfficer that tha C-86 Notian filedby In,tured Ndrk*r on 4/11/07 Is ORANTED to the extant of thls ordar.

7ke Full Ifrakiy Nage (RrSi) is SET at #457.36 btsad upon 42,744.20 dtvidnd by• 6 beaks.

Th. Avarsga Weak1 Y Yaps (ANIP) Is SET at ;417.06 based iqwn 1?1,686.43'dividid by 62 xaexi.

The Industrt►1 Comfssian invokes spee1a1 circmnstancas in oMer to doaubstantiel Justice to the inJurad korker. in,tunad vorkar Has xorkinp at 2differaat dobs during the yaar prior to injury and also hed htsr ambusiness. The busisass did nab penarate a nv nst incos,o; therafora, no-fiHuras fron the se1^ esplW^ent are coestdsred. Ths wages fron both thsinstant osployer aW t^e othsr eeplcyar Ctq addsd ethar to do substaatialtsttea. ilN ssployar s aryunant that the cssa of

Mands that only npas fron siadlar.acctpatfons ba a dad togst ar fs fousdnat inll takan. In tIq use , xaqasfroR diss4aiTar occupations keTM added tegtttnr for'both P1tM and Ahlfaa7eNations in order to do substanbisl lustice.

Thls order is blsed upoe the xa6se on fiia.

prH Fil4do 5/11/07

All evidosce in the record was ravietrd and oontidered.

Ths Sslf-Insur4d esqioyer is hsraby ordarad to conply with the•abova

OHnSI ' Page i

.1 A

k

7Le1ba0shEalCcs>mh^anotoh[o '

1tEC4RU OF PIi,OCEEDINGS ;Citin Huspsrs 06-880229

irtdings.

An I.ppnl froa this ordar nsy be f41ed rithin 14 drys ot the racsipt of thearder. TFa App"1 nuy ba fiisd oniins at tnn^.okiefg.eeai or the AppxlrC-12) rxW [» sent to the rndustMsl Coaaissfes of Ohio

Taledo 91striet Orfiee, One 6evernnentCester, Soite 15p6, Toledo OH 43604.

DRis 7ypodsPa06/16/2k07 Ly^ ne teDste PACOi r 01/20/2007 Bietrtet Bnrtp9 OfficerHot ee or ntastad Cfaie: 04/19/2007Fln^ings Hx iul: 06/O1/2007 LYZWUyevwby

The perties and rspreseatsNvss listed baiox have beos seet this record of

ln^iura^d xnrkerror e^Mpioytr,tpliait otltydthepind^etrlihCooafqlscion.t^

06-899289Christopher J. Rapsr3394 Otta St •Toiedo OH 43608-1866

Risk Hos 20001639-0Cvdex 6round P+cta9o SystsnParks Larry

dkrenxON4^334-0459

ID Nos 20511-91Oalion Tstaes eoissoneault & Schtff3516 Crtaits CirT,aiedo OH 43617-1172

10 8oe 1475-80Crxvfohi & Company7271 Enple RQ Ste 393Clevetand OH 44130•8404

10 Hos 1649-80Eastman & Soith Ltd•PO Box 1003z -Tolsdo OH 43699-0032

EYC, tAli B18ECTOR

BHOS1 Page 2

•. ew.s avn.ewisr..o-ik

: • psNPss

35

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IN THE FRANKLIN COUNTY COURT OF APPEALSTENTH APPELLATE DISTRICT

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U:• .C =

State of Ohio, ex rel,FedEx Ground Package System, Inc.3925 Embassy ParkwayAkron, Ohio 44334

vs.

Relator,

Industrial Commission of Ohio30 W. Spring StreetColumbus, OH 43266,

and

Christopher J. Roper3384 Otto St.Toledo, OH 43608-1366

Respondents.

Case No.

BWC Claim No: 06-888289 .

COMPLAINT FOR WRIT OFMANDAMUS AND REOUEST FORORAL ARGUMENT

John T,Landwehr (0021711)Nicole A. Flynn (0074196)EASTMAN & SMITH LTD.One SeaGate, 24'h FloorP. O. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777

Actomeys for RelatorFedEx Ground Package Systems, Inc.

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s

FedEx Ground Package System, Inc. (FedEx), in the name of the State of Ohio, sets forth

its complaint for a Writ of Mandamus as follows:

l. At all times relevant hereto, FedEx was a selFinsured employer of labor subject to the

Ohio Workers' Compensation Act, and has complied with said law by paying

compensation and medical benefits directly to its injured employees.

ED

1G

2. Respondent Industrial Commission of Ohio ("Commission") is the duly authorized board

in the State of Ohio with jurisdiction to render final determinations in claims involving

the existence and extent of disability, pursuant to Article 11, Section 35 of the Ohio

Constitution and Chapters 4121 and 4123 of the Ohio Revised Code.

3. Respondent Christopher" J. Roper ("Roper"), a part-time employee of FedEx, filed a

workers' compensation claim against FedEx with an October 24, 2006 date of injury.

Claim No. 06-888289 has been recognized for "lumbar sprain/strain" and "L4-5 disc

protrusion."

4. At all times relevant hereto, Roper was a Package Handler for FedEx; as such, his duties

included removing packages from a conveyor belt and loading them onto trailers.

5. For the week ending October 21, 2006, Roper earned $250.80 from FedEx.

6. For the week ending October 14, 2006, Roper earned $173.80 from FedEx.

7. For the week ending October 7, 2006, Roper eamed $257.40 from FedEx.

8. For the week ending September 31, 2006, Roper earned $275.55 from FedEx.

9. For the week ending September 23, 2006, Roper earned $191.40 from FedEx.

10. For the week ending September 16, 2006, Roper eamed $202.95 from FedEx.

11. The 2006 Full Weekly Wage State Minimum Rate was $234.67.

12. Mr. Roper's total gross earrtings from FedEx during the 52 week period preceding the

date of injury were $8,343.55.

13. Beginning on or about February 13, 2007, FedEx began paying Roper temporary total

disability compensation benefits based upon his earnings from FedEx. Roper received

temporary total disability benefits for the period beginning January 24, 2007 and

continuing.

2

14. On April 11, 2007, Roper filed a motion requesting that: (t) his full weekly age be reset

from $234.67 to $457.36 to account for concurrent employment; (2) his average weekly

wage be reset from $160.45 to $542.89 to account for concurrent employment; and (3) all

previously paid compensation be adjusted accordingly.

15. During the year prior to the date of injury, Roper was employed by Integrated Pest

Control as a Wildlife Control Operator. As such, his duties included pest control and

extermination services.

16. During the 52 weeks prior to the date of injury, Roper attested to eaming $13,220.88

from Integrated Pest Control.

17. Roper continued to work for Integrated Pest Control. following the date of injury and at

least up until December 31, 2006.

18. During the year prior to the date of injury, Roper was self-employed as a Wildlife Control

Operator and operated his own business under the name of Affordable Animal Removal.

Roper's duties for Affordable Animal Removal were substantially similar to the duties he

performed for Integrated Pest Control.

19. During the 52 week period preceding the date of injury, Roper operated Affordable

Animal Removal at a loss.

20. Roper received temporary total disability compensation payments from January 24, 2007

through the present.

21. By order mailed on June 1, 2007, an Industrial Commission district hearing officer reset

Roper's full weekly wage at $457.36 based upon a calculation of $2,744.20 divided by 6

weeks. The district hearing officer also reset Roper's average weekly wage at $417.05

338

based upon a calculation of $21,686.43 divided by 52 weeks. These rates incorporated

Roper's earrtings from Integrated Pest Control ("concurrent employment").

22. By order mailed on July 6, 2007, an Industrial Commission stafPhearing officer affirmed

the rates set by the district hearing officer and ordered that Roper's previously paid

compensation be adjusted accordingly. •

23. On July 23, 2007, FedEx filed an appeal of the staff order, which the Industrial

Commission refused on July 27, 2007.

24. On August 14, 2007, FedEx requested reconsideration of the Industrial Commission's

refusal of FedEx's appeal of the staff order. The ilndustrial Commission denied FedEx's

request for reconsideration.

25. The Industrial Commission abused its discretion by re-setting Roper's full weekly wage

and average weekly wage rates in Claim No.: 06-888289 for the following reasons:

a. The Industrial Commission's decision is not supported by record medical

evidence indicating that Roper was disabled from the concurrent employment;

b. The Industrial Commission's decision is not supported by any evidence in the

record or by any legal authority;

c. The concurrent employment was not similar in nature to the employment in which

claimant was engaged when injured;

d. Even if Roper were able to establish that he was unable to work for Integrated

Pest Control during the periods for which he received temporary total disability

compensation, there is no evidence that the alleged inability to work was

proximately caused by the October 24, 2006 industrial injury.

4

qo

26. FedEx has no plain and adequate remedy in the ordinary course of ]aw for the final order

addressed herein.

27. FedEx has exhausted all administrative remedies with respect to Claim No. 06-888289.

WHEREFORE, FedEx demands that a writ of mandamus be issued compelling the

Industrial Commission to vacate the July 6, 2007 order and enter a new order denying Roper's

April 11, 2007 request to reset his average and full weekly wage rates and to adjust any

previously paid compensation. In the altemative, FedEx requests that this Court issue a limited

writ of mandamus compelling the Commission to vacate its decision, to conduct a further

hearing in this malter, and to thereafter issue an order which complies in all respecis with the

requirements of the law.

Respectfully submitted,

John T. Landwehr (0021711)Nicole A. Flynn (0074196)EASTMAN & SMITH LTD.One SeaGate, 24'h FloorP. 0. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777

Attomeys for RelatorFedEx Ground Package Systems, inc.

5

an

REOUEST FOR ORAL ARGUMENT

Relator FedEx Ground Package System, Inc. respectfully requests that oral argument

before the Court of Appeals of Franklin County, Tenth Appellate District be granted in this

matter pursuant to Rule 12(L) of the Tenth District Appellate Rules.

Attomey for RelatorFedEx Ground Package System, Inc.

PRAECIPE

TO THE CLERK:

Please issue a copy of the foregoing Complaint for Writ of Mandamus and

Request for Oral Argument by certified mail, return receipt requested, upon respondents

Industrial Commission of Ohio, 30 W. Spring Street, 7`h Floor, Columbus, Ohio 43266; and

Christopher J. Roper, 3384 Otto Street, Toledo, OH 43608-1366.

Attomey for RelatorFedEx Ground Package System, Inc.

41

DOCKETING STATEMENT

This original action should be assigned to the expedited calendar because no transcript is

required.

U"'x' a ufll ""_John T. Landwehr (0021711)Nicole A. Flynn (0074196)EASTMAN & SMITH LTD.One SeaGate, 24'h FloorP. 0. Box 10032Toledo, Ohio 43699-0032Telephone: (419) 241-6000Facsimile: (419) 247-1777

Attorneys for RelatorFedEx Ground Package Systems, tnc.

742

' Get a Document - by Citation - 127 Ohio St. 217

LE.'XISNC'Xi5` rolal Rewarrh 5ysfcm

Page 1 of 4

SMA[SN CIieM I Prelerencas I eipnON I®Halp

Search ResearchTasks GetaDocument Shepard's®TAlertsTTotalLHigatorJTransaetionalAdviserTCounselSelector,Do>aierI rrsrary IED

POCUST" Tenns ^

Service: Got by LEXSEE®CitaGon: 127 Ohio St. 217

` Search Within odglrtal Results (1- 1) 21 = Advanced...

127 Ohfo St. 217, *; 187 N.E. 768, **;1933 Ohio LEXIS 284, ***

THE STATE, EX REL. SMITH, v. INDUSTRIAL COMMISSION OF OHIO, THE STATE, EX REL. ALLEN, v. INDUSTRIALCOMMISSION OF OHIO

Nos. 24143, 24144

Supreme Court of Ohlo

127 Ohio St. 217; 187 N.E. 768; 1933 Ohio LEXIS 284

November 1, 1933, Decided

PRIOR HISTORY: [***1] IN MANDAMUS.

These are original actions in mandamus by the relators Leon C. Smith and Loring Allen, as permltted by Section 871-40,General Code, seeking writs requiring the Industrial Commission to compensate them for their Injuries on the basis ofthelr total weekly earnings from all sources.

The question Involved In both cases Is identical, and they will be consldered together.

Smlth was the chief, and Allen was a member of the volunteer fire department of 3efferson township, Fayette county,Ohio, under a contract of hire with the trustees of that township. Smith received compensation of $ 2 per hour for thetime spent by him in extinguishing fires, and Allen was paid at the rate of $ 1 per hour for such services.

Whlle en route to a fire on a motorized fire truck provided by the townshlp, Smith and Allen were both serlousiy injuredwhen a tree fell across the truck.

Smith was a baker by trade, In which regular occupation he received an average weekly return of approximately $ 40,while Allen was employed In a restaurant, receiving an average weekly wage of approximately $ 25.

Shortly after the accident, separate claims were flled by the relators with the respondent, asking [***2] allowance ofcompensatlon from the state Insurance fund for their Injurles. Thetr claims were approved and compensation awardedand paid an the basis of the average weekly wage of each relator as a member of such volunteer fire department.

Smith has received the sum of $ 4,326.06, and Allen the sum of $ 2,470.76, for medical expenses.

DISPOSITION: IYrlts denled.

CASE SUMMARY

PROCEDURAL POSTURE: Petitioners, workmen's compensation claimants, each filed an original action seeking a writof mandamus to compel respondent, the Industrial Commisslon of the State of Ohio, to compensate the clalmants fortheir injuries on the basis of their total weekly earnings from all sources. The court consolldated the petitlons as eachcontained Identical issues under Ohio Gen. Code § 871-40.

OVERVIEW: Both claimants were members of their town's volunteer fire department under a contract for hlre withthe trustees of the town. Both claimants were seriously Injured when a tree fell across the truck as it was respondingto a fire. One of the claimants was a baker by trade and the other was employed in a restaurant. The Conimissionentered an award based on the clalmant's wages as volunteer flremen only. The claimants filed a petition for a writ ofmandamus to compel the Commission to set their compensation based not only on their salary when employed asvolunteer firemen, but also based on their salaries In their regularjobs. The court held that the phrase "averageweekly wages" under Ohio Gen. Code § 1465-79, meant the amount received by the petitioners as volunteer firemenand did not Include the amount that would have been received In their regular occupattons.

OUTCOME: The court denied the claimants' petition for mandamus to compel the Commisslon to pay them benefltsbased on thelr other employment.

43nnnrnnnn. e , s •..n^nn n r n11m1n1 _nanna.+,_I ^ _o

' Get a Document - by Citation - 127 Ohio St. 217 Page 2 of 4

CORE TERMS: average weekly wages, earnings, firemen, Compensatlon Act, restaurant, volunteer, baker,performing, Insurance fund, compensated, policeman, Iocality, pursuit, plumber, temporary, Injured employes, firedepartment, proper basis, amount received, disability, township

LEXISNEXIS® HEADNOTES DHide

workers' compensation & SSDI > Adminletrative oroceedlnos >Awardg> General Overyew "eWHNS„+Every employee mentioned In Ohio Gern. Code § 1465-61, who Is Injured, wheresoever such Injury occurs,

provided the same was not purposely self-Infllcted, shall be paid such compensation out of the state insurancefund for loss sustained on account of such Injury as Is provided In the case of other Injuredemployees. More LlkeThls Headnote I Sheoard7ze: Restrlct By Headnote

Wnrk rg'Compp = t'o & SSDI >BeneBtDeterminatlons> EarnlnqCapacltv'>JHr12•tln the case of temporary disability, an employee shall receive slxty-six and two-thirds percentof his average

weekly wages so long as such disability is total. Ohlo Gen. Code § 1465-79. Mora Like This Headnote ^Sheuardize: Restrict By Headnote

f3av mmerds > Lucal Governmellts > Fre Departments t^

Workers' Compensetlon & 55DI >$Enpflt Determinatlons > Earnlne Cana['tv

H^'31The average weekly wage of the Injured person at the time of the Injury shall be taken as the basis uponwhich to compute the benefits. Ohio Gen. Code § 1465-84. More uke Thls neadnnce I Sheaardlze: Restrlat Bv Headnote

HEADNOTES O Hi

HEADNOTES

Workmen's compensation -- Average weekly wage -- Limlted to wage received in employment In whlch Injury occurred --Clalmant /nJured while serving. /n volunteer fire department -- Sections 1465-79 and 1465-84, General Code.

SYLLABUS

In determining workmen's compensation based upon the average weekly wage under Sections 1465-79 and 1465-84,General Code, the Industrial Commisslon Is Iimlted to the average weekly wage recelved in the employment in which theinjury occurred, where claimant was Injured while serving as a member of a volunteer flre department, and was alsogenerally engaged In another separate and distinct line of work.

COUNSEL: Mr. Stanley S. Stewart, for relators.

Mr. John W. Brlcker, attorney general, and Mr. R. R. Zurmehly, for respondent.

JUDGES: ZIMMERMAN, ). WEYGANDT, C. J., STEPHENSON, JONES, MATTHIAS [***3] and BEVIS, JJ., concur.

OPINION BY: ZIMMERMAN

OPINION

[*219] [**768] The relators malntain that they are entitled to be compensated on the basis of their average weeklywages as members of the volunteer fire department, and as baker and restaurant employe, respectively.

The respondent contends that the proper basls of compensation should be limited to the wages received by relators asvolunteer firemen.

The real questlon presented, therefore, Is: What Is the proper basis of compensation for these Injured relators?

The leglslation enacted by the General Assembly under the constitutional sanction In creating a state Insurance fund forthe benefit of employes, and providing for Its administration, Is commonly deslgnated as the "Workmen's CompensationAct " By virtue of Sectlons 1465-60 to 1465-63, Incluslve, General Code, Jefferson township was a contributor to thestate insurance fund, and relators were public employes protected by such fund. Contribut[on was made by the townshipon behalf of relators, in proportion to the pay they received as ifremen. Nowhere does It appear that relators werecovered by the Compensation Act In their respective pursuits of baker and restaurant [***4] worker.

It is provided by Sectton 1465-68, General Code, that; ~Nl+'Every employe mentloned in section 1465-61 [which

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' Get a Document - by Citation - 127 Ohio St. 217 Page 3 of 4

Inciudes the relators], who Is injured, * * * wheresoever such injury has occurred, provided the same was not purposelyseff-Inflicted, * * * shall be paid such compensation out of the state Insurance fund for loss sustained on account of suchInjury * * * as Is provided in the case of other Injured * * * employes."

[*220] [**769] Section 1465-79, General Code, states In part: H'y^"In case of temporary dfsablllty, the employeshall receive sixty-six and two-thirds per cent. of his average weekly wages so long as such disabllity Is total."

Section 1465-84, General Code, reads as follows: HM97'The average weekly wage of the injured person at the time of theinjury shall be taken as the basis upon which to compute the benefits."

In relation to these particular cases, does the phrase "average weekly wages" mean the amount received by the relatorsas firemen, or does it include the amount received as firemen and also the amount accruing from their regularoccupations?

While the same Is not controlling here, the Industrial Commission passed a resolution determining that [***5] relatorsshould be compensated on the basis of employment as firemen.

The question to be decided Is new In ohlo, and the decisions from other states are not helpful, by reason of the particularstatutes under which those decfsions were made, whfch differ from ours. The statutes of some states specifically coverthe situation here presented.

It has been held by courts in other jurisdictions that where an employe Is engaged In similar work for two or moreemployers at the time of an Injury, his compensation should be based on the amount which he usually earned In theparticular kind or type of employment, rather than on the amount he had been receiving from the particular employer Inwhose service he was engaged at the time of injury. Western Metal SuQolv Co. v, Prlfsbury, 172 Cal 407 156 P. 4,9Ann. Cas., 1917E, 390; Fldellty Union Casualty Co v . Carey (Tex Comm App) 55 S W. (2d) 795; Geneva-Pearl Oil &Gas Co. v. Hickman 147 Okl 283 296 P 954.

However, in Quebec's case, 247 Mass. 80. 141 N . E. , 582 30 A. L. R., 996, Involving similar employments, [*221] itwas held, under a general law of Massachusetts applied to the case, [***6] that where a workman, employed fordistinct portions of time by two separate employers, but under the same superlntendent, was injured while working forone of them, his average weekly wages received In the employ of the one for whom he was working when Injuredconstituted the true basis for a compensation award. A like result was reached on similar facts In King's case, 234 Mass.137. 125 N. E 153.

The general subject Is discussed, and a number of cases cited, in the notes found in 30 A. L. R., 1002 et seq., assupplemented In 58 A. L. R., 1396 et seq.

Of course, there is a clear distlnctlon between the Instant cases and those which hold that an employe should becompensated on the basis of combined earnings from all similar employments. It cannot be seriously contended thatemployment as a baker, and employment as a restaurant worker, respectively, are in any way related to that ofvolunteer fireman.

A decfsion more nearly In point is Villaoe of West Salem v. rndustrial Commisslon 162 Wis 57 155 N. W. 929, L, R. A.,1918C, 1077. In that case one Voeck, a plumber, was called upon by a village marshal In an emergency to help enforcethe law. He met [***7] his death in that pursuit. The Supreme Court of Wisconsin held that Voeck was a temporarypoliceman, performing police service within the terms of the Wisconsin Workmen's Compensation Act, and thatcompensation for hls death while so acting could not be based upon his earnings as a plumber, but upon the earnings ofone performing the duties of a policeman In that locality, or a neighboring locality, as provided by a statute which thecourt determined applicable.

Slmtlarcases arriving at the same general conclusion are Millard Coimtvv Industrial Commission 62 Utah, 46 217 P974, and Monterey Coun v Industrial r*2221 Accident Commisslon 199 Gal 221, 248 P912 47 A L R 359.

While It has always been the pplicy of thls court to construe liberally the provlsfons of the Workmen's Compensation ActIn favor of injured empioyes and their dependents, we should have to resort to a dubtous and forced construction of ourstatutes to hold that the phrase "average weekly wages" as used therein was Intended to cover both the earnings of anemploye In the particular work he was performing when Injured and the remuneration received in a distinct andseparate [***8] employment in which he was generally engaged, and which was not connected In any way with theemployment in which the injury was suffered.

We hold, upon the facts In these cases, that the relators are not entitled to awards by the Industrial Commission, asrespondent, on a basis Including their earnings as a baker and restaurant worker, respectivefy.

A writ, as prayed for, will therefore be denied In each case.

Writs dented.

Servica: Get by LE%SEE4rCilaQon: 127 Ohio SL 217

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' Get a Document - by Citation - 127 Ohio St. 217

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S§2

•^(Ammded Sabstttute ironm H8t No. 89)

AN AGT'P

• To amend «etbm 1165-48, 146681' aad 1466-83 of the $anarafCade, VAalatvg to,thp workmen's eampmradon kw.

8e 1t enacled by the Ganerot risssmbly of tfu Stata of Ohfo:

Sacriorr 1. That sections r465-7g, r465-8i and'r46S-84 be ameadedto reedaa foliowss ' •

Couapeosatton fn cases of temporarq disability.

See. 146-2g. • in ea.'sa of tempvrary disability, the employe shallrecetve sixty-ilx and twb-tlurds per cent of his avelage week7y wages solong as such disabiiiV is total, not to exceed a maxiinum of elghteeadolrars and seventy-Sve cents per week, and not less than a minimum of*+*'etAt dollars per week, unless the emp2oyds w ages shail be lessthan * etght doUars per week, in which event he s]nil receive com-pensatl on equaf to his full wagest-but In no case to oondnue for morethan slx years from the date of the fn)ury, nor to exceed three thousand,soven hundred and fifty dotlars. ^

Cpml,ensatfon In eases of perLeat total disa5iftty.

Sec. 14601. rn cases of permanent total disabiiity, the award shallhe sixtktsix ppd t=to-thirds per cont of the average weekly wages, andshall contlnue until the death of such person so totally disabled, but not toexceed a mWpimum of efghteen dollars and saveniy-five cents per weekand tiot 3ess'than a minhnum of-3*« etght doliars per week, vnless theem a,1¢'s average weoklq wages are less than *** efght dollars per weekat t^e t3ne oJ the iniury, in wbfch event lie shall recotve eompensation inau amount equal to his averaga weekly wages.

The loss of both hands or both arnis, or both feet or both legs, orboth eyes, or of any two thereof, shall prima facie constitute total andr anent disebility, to be compeneated aecording to the provfsfons of

s section.

Basia for aumputatlon of beae6ts.Sec. a46g-84. The average weekjy wage of the inJured persnn at the

tffrie of the fnJury ahall be taken as the basis upon which to compute the•bene6ts. ,

In cases of tem^orary total disabitity fke sompensvtion or turrrve(ra) weeks fr9m on tsr tAe fnjary shald be based on the all weeklywags of the•clatpnant a^the tlme of the fnrtry; proatding, t toho^t afaetary,+ndns or other p,tace of s•nyptoyneent fs roorking skort tinre, fn orderta diofda wark amang the etn¢loyyees, the commitsioa aka# take that factltrto consfdsration whcn determminq tke wage for she fu•'st twfve ^taJweeks of tempottuy tofal dlrRblllty,

3

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Compensailan for aIt fnrther temporary tolal dtsablltty sbatl be based ^as prnvided.hareln for permanent dirabllity 4laiuts:

Jn deoill elairns: pemunent tolcl disubility claims, penewnent partiatd1mbi7{ty elafms and daurrs for 4mpahment of edrntngs-, tke cJalsnant's _.or the deced§nt's avorage wetkiy wage for fhe ycar precediag the inJssJrshatt be the weekly wage upon wAidt crrnepsnsatibn ahpld be based. ittascertainfag tlre iea•erage weekly wage for the year prevlosrs to th8 tnfnr•y,any perfod of tlnentplayneru due to skk+iess, irndtts{rGd depressioa, striktor tockout, 41raR bo srimi4rated.

In tase.t aehere fhere are speclat cercumsfances snder wklch the auer-ape weekly wage fanrJor justly bo detlrmtned by bpplying the above pro-trfsionslhe comadaslon, Jn deternduhrg the aoerage weeXsty toage,•in snehcasu, skot6 use s(uah +nethod as wil! enabta it to do substaonfal ftlsttce iothe clalnwnts.

Repeal.

Senrtot+ z. That existing secffons 1465-779, aq65-Sx and 1465-84 be,and the same are hereby repealed,

FRANK R. UTBLE,Speaker of the House of Represanfatives.

TCETTH LAV1tRTNCEPrealdent pro tom. of f^re Senate.

paased Apn'I 8, t937•

Approved April zt, t937.

MARTtN L. DAVEY,Gooernar,

The ecctlouai nnm6ers 3n thts acCare In wntonnlty to the Generat Code.

t#acnaa S. Darn,.4110YNly fsenCtPl,

Ttiled in the office of the Secretary oE State at CohintLas, Ohio, onei Aprit A n_ raaa_ .the aand day

Fite Np. 454,

WILY.fAM J. .ICENNPUY,Serretary of Slalt.