THE STATE EX REL. FEDEX GROUND PACKAGE SYSTEM, INC., APPELLANT, v. INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES.
No. 2009-0918
Supreme Court of Ohio
June 8, 2010
126 Ohio St.3d 37, 2010-Ohio-2451
Submitted March 30, 2010
Per Curiam.
{1} Appellee Christopher J. Roper was working multiple jobs at the time of his industrial injury. We must determine which wages are to be included in the calculation of his average weekly wage (“AWW“) and full weekly wage (“FWW“).
{12} Roper began working part-time for appellant FedEx Ground Package System, Inc., in 2004. Roper generally made between $190 and $250 per week. In April 2006, Roper took a second job with Integrated Pest Control that paid considerably more than the job at FedEx. Roper was also operating a side business, Affordable Animal Removal, concurrently with the other two jobs.
{13} On October 24, 2006, Roper was injured at FedEx. FedEx, a self-insured employer, set Roper‘s AWW at $160.45, and his FWW at $250.80, based solely on his earnings at FedEx. Roper moved appellee Industrial Commission of Ohio to reset his average and full weekly wages based on his combined earnings from FedEx and Integrated Pest Control.
{14} A district hearing officer, citing the “special circumstances” provision of
{15} FedEx filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in increasing Roper‘s full and average weekly wages. The court of appeals disagreed and denied the writ, prompting FedEx‘s appeal to this court as of right.
{16} At issue is the commission‘s inclusion of Roper‘s additional wages from Integrated Pest Control when computing his full and average weekly wage. Our review supports these calculations.
{17} The AWW “is the basis upon which to compute benefits,”
{18}
{19} Roper worked at FedEx and Integrated Pest Control concurrently. The district and staff hearing officers concluded that Roper‘s additional employment with Integrated Pest Control was a special circumstance that warranted inclusion of those earnings in the aggregate wages for the year preceding injury. The commission defends the amount set, but now states that the hearing officers erred in using the special-circumstances provision, because the standard calculation already demands inclusion of all wages earned in the year prior to injury.
{110} FedEx argues that inclusion of wages from other, concurrent employment discourages claimants from continuing to work at the second job if they are medically able. The higher AWW that results from combining wages “creates a disincentive for employees to return to the workplace,” FedEx claims. FedEx also believes that it is unfair to require an employer to pay weekly temporary
{111} First, there is no statutory basis for excluding concurrent wages.
{12} Second, contrary to FedEx‘s representation, relevant case law does not limit the inclusion of concurrent wages to jobs involving “similar” employment. FedEx‘s reliance on the 1933 decision in State ex rel. Smith v. Indus. Comm. (1933), 127 Ohio St. 217, 187 N.E. 768, is misplaced. Smith involved a predecessor version of
{113} FedEx‘s argument also fails from a practical standpoint. FedEx decries as inequitable the inclusion of wages from Roper‘s second job because those wages were significantly higher than his wages at FedEx. Similar jobs, however, can also have very disparate earnings. Limiting wages to jobs that are similar in character does not eliminate the potential wage differential to which FedEx objects.
{114} Third, we are not persuaded by FedEx‘s assertion that inclusion of concurrent wages discourages employment. FedEx believes that combining concurrent wages could produce an AWW—and with it a weekly amount of temporary total disability compensation—that is high enough to discourage injured employees from continuing to work at the second job even if they are medically able. This proposition, however, ignores the fact that
{15} Finally, inclusion of concurrent wages is not inherently unfair. FedEx argues that it is unfair to require it to pay temporary total disability compensation benefits that, based on combined wages, exceed Roper‘s wages at FedEx. This assertion fails for two reasons.
{16} First, if a claimant is so severely hurt at one job as to disable him or her from both, it is not unfair to compensate the claimant for that cumulative loss. Second, the inclusion of two sets of wages was not considered unfair by the
{117} We accordingly find that the commission did not abuse its discretion in including earnings from both FedEx and Integrated Pest Control in establishing Roper‘s AWW.
{118} FedEx also challenges the amount of Roper‘s FWW. The Revised Code does not define “full weekly wage” for workers’ compensation purposes, and this silence has been construed as affording the commission discretion in setting the FWW. State ex rel. Taylor v. Indus. Comm., Franklin App. No. 05AP-803, 2006-Ohio-4781, 2006 WL 2627557, ¶ 14. Consistent with this discretion, the commission and bureau in 1980 issued Joint Resolution No. R80-7-48:
{119} “WHEREAS confusion and uncertainty [have] arisen regarding the computation of the full weekly wage of injured employees under
Ohio Revised code section 4123.61 , and{120} “WHEREAS the Industrial Commission and [B]ureau of Workers’ Compensation seek to achieve uniformity of treatment between state-fund and self-insuring employers;
{121} “THEREFORE BE IT RESOLVED, that the full weekly wage shall be computed in the following manner:
{122} “For employees who have been either continuously employed for six weeks prior to the date of injury or who have worked for at least seven days prior to the date of injury, the full weekly wage shall be the higher amount of either:
{123} “a) The gross wages (including overtime pay) earned over the aforementioned six week period divided by six, or
{1124} “b) The employee‘s gross wages earned for the seven days prior to the date of injury (excluding overtime pay).”
{125} The staff hearing officer used the first formula to set Roper‘s FWW. FedEx challenges the commission‘s reliance on R80-7-48, alleging that it was superseded in 1993 by Am.Sub.H.B. No. 107. 145 Ohio Laws, Part II, 2990. This argument, however, was correctly rejected in Taylor, which emphasized that the only change that Am.Sub.H.B. No. 107 made to
{126} “[I]n former
{1127} We have consistently recognized and generally deferred to the commission‘s expertise in areas falling under the agency‘s jurisdiction. State ex rel. Hina v. Indus. Comm., 121 Ohio St.3d 4, 2009-Ohio-250, 901 N.E.2d 221, ¶ 19. We therefore defer to the commission‘s FWW calculation and find that no abuse of discretion occurred.
{128} The judgment of the court of appeals is affirmed.
Judgment affirmed.
PFEIFER, LUNDBERG STRATTON, O‘CONNOR, O‘DONNELL, and CUPP, JJ., concur.
BROWN, C.J., and LANZINGER, J., not participating.
Eastman & Smith, Ltd., John T. Landwehr, Nicole A. Flynn, and Mark A. Shaw, for appellant.
Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A. Bowman, for appellee Christopher Roper.
Richard Cordray, Attorney General, and Gerald H. Waterman, Assistant Attorney General, for appellee Industrial Commission.