THE STATE EX REL. HADDOX, APPELLEE, v. INDUSTRIAL COMMISSION OF OHIO; JEFFERSON SMURFIT CORPORATION, APPELLANT.
No. 98-961
Supreme Court of Ohio
April 5, 2000
88 Ohio St.3d 279, 2000-Ohio-326
Submitted January 25, 2000. APPEAL from the Court of Appeals for Franklin County, No. 97APD01-6.
{¶ 1} Appellee-claimant, Kermit S. Haddox, was injured in an industrial accident in 1994 while working for appellant, Jefferson Smurfit Corporation (“JSC“). After claimant’s workers’ compensation claim was allowed, his average weekly wage (“AWW“) and full weekly wage (“FWW“) were set, with the latter being the higher of the two.
{¶ 2} Claimant missed approximately four months of work. He was eventually released to return to light duty. Claimant did so, securing a position at JSC with a lower hourly rate, but which provided the chance for substantial overtime. Some weeks, the amount of overtime produced earnings in excess of claimant’s full weekly wage. Other weeks, it did not.
{¶ 3} As a self-insured employer, JSC began paying working wage-loss compensation. During weeks that claimant’s wages exceeded his FWW, claimant neither sought nor received wage-loss compensation. During those weeks in which FWW exceeded claimant’s earnings, JSC used a unique method for calculating the amount of compensation due. Any amounts earned over and above the FWW in prior weeks would carry over to weeks in which earnings fell beneath the FWW.
{¶ 4} Claimant challenged JSC’s action administratively. The Industrial Commission of Ohio, however, did not resolve the matter, writing instead:
“The District Hearing Officer finds that neither party has proved whether or not wage loss (working) is or is not being paid at the correct rate.
“The District Hearing Officer orders working wage loss to be paid as follows and makes no other findings on whether working wage loss has or is being paid correctly.
“Wage loss is payable at 66 2/3% of the difference between claimant’s wages and the Full Weekly Wage or the Average Weekly Wage, whichever is greater. * * *”
{¶ 5} Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County. The court of appeals issued the writ, which ordered the commission to vacate its order and to recalculate claimant’s wage loss based upon the difference between claimant’s actual weekly earnings and the FWW or AWW.
{¶ 6} This cause is now before this court upon an appeal as of right.
Philip J. Fulton & Associates and William A. Thorman III, for appellee.
Scott, Scriven & Wahoff, L.L.P., and Timothy E. Cowans, for appellant Jefferson Smurfit Corporation.
Per Curiam.
{¶ 7} Wage loss is “the difference between the employee’s present earnings and the greater of the employee’s full weekly wage or average weekly wage.” Former
{¶ 8}
{¶ 9} The present claimant’s injury propelled him into a job paying a lower hourly rate. Some weeks, however, entailed considerable overtime, and his actual earnings exceeded his FWW. During these weeks, claimant obviously suffered no wage loss and did not allege any such compensation entitlement. At issue is JSC’s calculation of claimant’s wage loss during those weeks when his FWW exceeded his earnings.
{¶ 10} During overtime weeks where actual wages exceeded the FWW, JSC appropriately did not pay wage-loss compensation. It then went one step further and carried over the amount of earnings that exceeded claimant’s FWW to the weeks in which claimant’s wages fell under that amount. This either eliminated or reduced the amount of wage-loss compensation claimant received during those weeks.
{¶ 11} The calculation established by
{¶ 12} We also find that
{¶ 13} JSC argues that nothing specifically mandates a weekly as opposed to aggregate wage comparison. We disagree.
{¶ 14} We accordingly affirm the judgment of the court of appeals.
Judgment affirmed.
MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY, PFEIFER, COOK and LUNDBERG STRATTON, JJ., concur.