State ex rel. Gunter v. Indus. Comm.
2017 Ohio 1571
| Ohio Ct. App. | 2017Background
- Relator Calvin Gunter was injured on his first full day of work (Nov. 15, 2012) and filed for workers' compensation temporary total compensation.
- Gunter sought an average weekly wage (AWW) reflecting both wages from anticipated work at Eclipse and self-employment income from selling used cars.
- BWC initially set the AWW low; a district hearing officer (DHO) later set AWW at $400 based on an asserted weekly rate from Eclipse.
- A staff hearing officer (SHO) recalculated AWW at $242.41 using reported wages ($6,683.25) divided by 27.57 weeks, rejecting Gunter's inclusion of gross car-sale receipts because expenses were not shown.
- The Industrial Commission denied Gunter’s further appeal and reconsideration; Gunter sought a writ of mandamus asking the court to order AWW reset (arguing for $503.64 or at least $400).
- The court adopted the magistrate’s decision denying the writ, finding some evidence supported the commission’s determination and that Gunter failed to timely present net-income evidence for his self‑employment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether commission abused discretion by excluding Gunter’s claimed self‑employment receipts from AWW | Gunter: AWW should include his used‑car sales income (or use special‑circumstances to set at $400 or $503.64) | Commission: Gunter produced only gross receipts; he did not prove net earnings (deducting business expenses), so inclusion would create a windfall | Held: No abuse of discretion — SHO reasonably excluded gross receipts absent evidence of net profit |
| Whether SHO should have applied R.C. 4123.61 “special circumstances” to set AWW at $400 | Gunter: Special circumstances warranted using the $400 weekly rate he would have earned at Eclipse | Commission: Gunter’s only support for $400 was inconsistent/insufficient; special circumstances not mandatory | Held: No; SHO not required to set AWW at $400 given weak and inconsistent evidence |
| Whether commission abused discretion by refusing to consider evidence submitted at third‑level appeal | Gunter: New evidence (affidavit) validated his business income and should be considered on appeal | Commission: Evidence was newly provided, not newly available; burden was on Gunter to present at hearing | Held: No — commission may decline reconsideration where relator failed to timely present proper evidence |
| Whether AWW must be based on gross business income rather than net income | Gunter: Commission erred by not using reported business income figures | Commission: Precedent requires using net earnings (deducting expenses) to avoid windfalls | Held: Net income approach appropriate; relator failed to prove net earnings so exclusion of gross receipts was supported by evidence |
Key Cases Cited
- State ex rel. Pressley v. Industrial Commission, 11 Ohio St.2d 141 (mandamus framework for challenging IC orders)
- State ex rel. Elliott v. Industrial Commission, 26 Ohio St.3d 76 (mandamus unavailable if some evidence supports commission)
- State ex rel. Lewis v. Diamond Foundry Co., 29 Ohio St.3d 56 (questions of credibility/weight are for commission)
- State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18 (abuse of discretion defined as decision lacking some evidence)
- State ex rel. Teece v. Industrial Commission, 68 Ohio St.2d 165 (fact‑finding discretion of commission)
- State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (requirements for mandamus)
- State ex rel. McDulin v. Industrial Commission, 89 Ohio St.3d 390 (AWW should be based on net income after deductions)