2012 Ohio 1084
Ohio2012Background
- Warner, a seasonal construction worker, seeks to have his average weekly wage (AWW) calculated for future workers’ compensation benefits.
- In the year prior to injury, Warner worked 30 weeks and was unemployed for 22 weeks due to seasonal layoff, receiving wages and unemployment benefits.
- Two calculations were proposed: exclude the 22 unemployed weeks or include them with unemployment benefits; Warner did not seek both exclusions and inclusions.
- The SHO excluded unemployment benefits from wages but included the unemployed weeks in the divisor, ruling layoff was not beyond Warner’s control.
- The court of appeals held the commission abused discretion by not considering a look-for-work evidence and by excluding unemployment benefits; the case was remanded.
- The Supreme Court reversed in part, clarifying how to treat unemployment weeks and unemployment benefits for the AWW calculation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are 22 weeks of seasonal unemployment excluded from the divisor? | Warner: unemployment beyond control should be excluded | Indus. Comm.: layoff is foreseeable and not beyond control | Unemployment weeks may be excluded if beyond control; remand to decide. |
| Should unemployment compensation be included in the wage total? | Warner seeks inclusion of unemployment benefits as wages | Benefits are not wages and cannot be included | Unemployment compensation excluded from wage total on remand. |
| Was the job-search evidence adequate to show unemployment was beyond control? | Warner looked for work, evidenced by unemployment benefits | No adequate job-search evidence found | Remand to evaluate whether Warner’s job search was sufficient. |
Key Cases Cited
- State ex rel. Clark v. Indus. Comm., 69 Ohio St.3d 563 (1994) (AWW formula variations; general rule)
- State ex rel. Baker Concrete Constr., Inc. v. Indus. Comm., 102 Ohio St.3d 149 (2004) (unemployment can indicate beyond-control status; job-search qualitative)
- State ex rel. McDulin v. Indus. Comm., 89 Ohio St.3d 390 (2000) (unemployment benefits not automatically wages)
- State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 286 (1990) (AWW fairness; avoid windfall)
- Riley v. Indus. Comm., 9 Ohio App.3d 71 (1983) (foundational AWW principle)