State ex rel. DPWN Holdings (USA), Inc. v. Indus. Comm.
2017 Ohio 8148
| Ohio Ct. App. | 2017Background
- Claimant Bruce M. Parcell injured his right ankle on March 9, 2015 while employed full-time by DPWN (self-insured employer).
- In the year before injury Parcell worked 29 weeks for DPWN, 9 weeks part‑time for James Pharmacy, and was unemployed ~14 weeks.
- DPWN calculated AWW by dividing total earnings for the year ($28,947.85) by 52 weeks = $556.69.
- Parcell sought recalculation, submitting an alternative earnings total ($29,304.70) and asking to exclude the 14 weeks of unemployment and divide by 38 weeks to set AWW at $771.18.
- A DHO denied Parcell’s motion; an SHO granted it, finding “special circumstances” under R.C. 4123.61 and setting AWW at $771.18. The commission denied reconsideration.
- DPWN filed mandamus in this court asking the commission be ordered to set AWW at $556.69 (or, per magistrate, $563.55). The magistrate recommended relief; the court independently reviewed and denied the writ, sustaining respondents’ objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the commission abused its discretion by applying the R.C. 4123.61 “special circumstances” exception to exclude 14 weeks of unemployment and divide earnings by 38 weeks | Parcell: standard 52-week formula produced an AWW ($563.55 per SHO calculation) that did not fairly represent wages lost; special circumstances justify excluding unemployment weeks to reach $771.18 | DPWN/commission: Parcell voluntarily left his part‑time job and was satisfied with part‑time work; the unemployment period flowed from that lifestyle choice and is not beyond his control, so it must be included | Court: No abuse of discretion — commission had some evidence to support finding special circumstances and setting AWW at $771.18; mandamus denied |
| Whether the SHO’s AWW computation conflicted with evidentiary totals (which would require a different mathematical AWW) | DPWN: SHO accepted Gallon law-firm total ($29,304.70) but then should have divided by 52 to reach $563.55, not $771.18 | Parcell: SHO permissibly used the Gallon total and eliminated unemployment weeks under special circumstances to compute $771.18 | Held: Court sustained objections to the magistrate; it found the SHO had some evidence for applying special circumstances and did not adopt the magistrate’s conclusion that the SHO must be reversed to $563.55 |
Key Cases Cited
- State ex rel. Ohio State Univ. Hosp. v. Indus. Comm., 118 Ohio St.3d 170 (Ohio 2008) (special‑circumstances exception applies where standard formula does not fairly represent wages lost)
- State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 286 (Ohio 1990) (special circumstances generally reserved for uncommon factual situations)
- Riley v. Indus. Comm., 9 Ohio App.3d 71 (10th Dist. 1983) (proximity of injury to reentry into workforce can be a special circumstance)
- State ex rel. Clark v. Indus. Comm., 69 Ohio St.3d 563 (Ohio 1994) (even voluntary reduced hours may warrant further inquiry for special circumstances)
- State ex rel. Baker Concrete Constr., Inc. v. Indus. Comm., 102 Ohio St.3d 149 (Ohio 2004) (workers’ comp benefits do not subsidize lifestyle choices; unemployment from a voluntary lifestyle decision generally cannot be excluded)
- State ex rel. Pauley v. Indus. Comm., 53 Ohio St.3d 263 (Ohio 1990) (related discussion that leaving labor market for personal reasons does not usually justify special adjustment)