State ex rel. Parente v. Indus. Comm., 2026-Ohio-2692

Background

Joseph Parente, the sole employee and owner of an S corporation, was injured at work and sought to include his Schedule K-1 earnings in his average weekly wage. 1
The BWC initially set Parente's average weekly wage at $765.53 based only on W-2 earnings, and later the SHO set it at $1,132.40 after excluding Schedule K-1 income under BWC policy. 2
Parente sought mandamus to vacate the commission's order and set his average weekly wage at $2,582.73. 3
The magistrate recommended denying mandamus, concluding Parente had no clear legal right to inclusion of Schedule K-1 income and the commission had no clear duty to include it. 4
The court reviewed whether the commission improperly treated the BWC policy as determinative instead of making an individualized substantial-justice determination under R.C. 4123.61. 5
The appellate court sustained Parente's objection, granted mandamus, vacated the commission's order, and remanded for further proceedings. 6

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Schedule K-1 income counts as wages for AWW 7	Parente said his K-1 distributions were pay for labor and should be included.	The commission said Schedule E/S-corporation income is excluded by BWC policy.	The court remanded for individualized consideration of whether K-1 income was wages. 8
Whether the commission could rely solely on BWC policy 9	Parente argued the policy was nonbinding and could not control.	The commission relied on the policy excluding Schedule E income.	The policy was only a guideline; the commission had to assess Parente's unique circumstances. 10
Whether mandamus was proper 11	Parente claimed a clear legal right to a higher AWW and no adequate remedy.	The commission argued some evidence supported its order and no clear duty existed.	Mandamus issued because the commission failed to make the required individualized AWW determination. 12

Key Cases Cited

State ex rel. Pressley v. Indus. Comm., 11 Ohio St.2d 141 (Ohio 1967) (mandamus requires a clear legal right, clear legal duty, and no adequate remedy 13)
State ex rel. Cassens Corp. v. Indus. Comm., 2024-Ohio-526 (Ohio 2024) (mandamus may issue when the commission abuses its discretion or misinterprets Ohio law 14)
State ex rel. Black v. Indus. Comm., 2013-Ohio-4550 (Ohio 2013) (a court will not second-guess the commission where some evidence supports its findings 15)
State ex rel. Gassmann v. Indus. Comm., 41 Ohio St.2d 64 (Ohio 1975) (mandamus may issue when the commission incorrectly interprets Ohio law 16)
State ex rel. Huntington Bancshares, Inc. v. Berry, 2022-Ohio-531 (Ohio 2022) (standard AWW formula divides prior-year earnings by 52 weeks 17)
State ex rel. Clark v. Indus. Comm., 69 Ohio St.3d 563 (Ohio 1994) (prior-year earnings are divided by fifty-two weeks to calculate AWW 18)
State ex rel. Mattscheck v. Indus. Comm., 2013-Ohio-285 (Ohio 2013) (AWW should approximate what the claimant would have earned but for injury 19)
State ex rel. McDulin v. Indus. Comm., 89 Ohio St.3d 390 (Ohio 2000) (wages mean monetary remuneration by an employer for labor or services 20)
State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 286 (Ohio 1990) (the commission must examine AWW questions case by case 21)
State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm., 2013-Ohio-286 (Ohio 2013) (BWC internal policies are advisory and not binding on the commission 22)
State ex rel. Sugardale Foods, Inc. v. Indus. Comm., 90 Ohio St.3d 383 (Ohio 2000) (BWC internal guidelines lack force of law 23)
State ex rel. Richards v. Indus. Comm., 110 Ohio App.3d 109 (10th Dist. 1996) (BWC wage guidelines are advisory only 24)
State ex rel. Yester v. Indus. Comm., 2007-Ohio-2525 (Ohio 2007) (AWW is designed to provide a fair basis for future-compensation loss 25)
State ex rel. FedEx Ground Package Sys. v. Indus. Comm., 2010-Ohio-2451 (Ohio 2010) (AWW should approximate preinjury earnings and do substantial justice 26)