{¶ 2} Pursuant to former Loc. Rule 12(M) of the Tenth District Court of Appeals,1 this court appointed a magistrate without limitation of powers specified in former Civ.R. 53(C)2 to consider relator's cause of action. The magistrate examined the evidence and issued a decision, wherein she made findings of fact and conclusions of law. (Attached as Appendix A.) In her decision, the magistrate recommended denial of relator's request for a writ of mandamus. Relator has filed objections to the magistrate's decision. See, generally, Civ.R. 53(D)(3)(b).
{¶ 3} In her objections, relator does not challenge the magistrate's findings of fact. See, generally, Civ.R. 53(D)(3)(b)(iv) (providing that, except for a claim of plain error, unless a party objects to a magistrate's factual finding or legal conclusion, a party's claim of error as to a magistrate's factual finding or legal conclusion is waived on appeal).
{¶ 4} Rather, in her objections relator challenges the magistrate's conclusion that former R.C.
{¶ 5} To be entitled to a writ of mandamus, relator must show (1) a clear legal right to the relief requested; (2) respondent is under a clear legal duty to perform the act sought; and (3) relator has no plain and adequate remedy at law. State ex rel.Fain v. Summit Cty. Adult Probation Dept. (1995),
{¶ 6} "In matters involving the Industrial Commission, the determinative question is whether relator has a clear legal right to relief. Such a right is established where it is shown that the commission abused its discretion by entering an order which is not supported by any evidence in the record." State ex rel.Valley Pontiac Co., Inc. v. Indus. Comm. (1991),
{¶ 7} The issue here therefore resolves to whether the magistrate erred when she concluded that the commission's order did not constitute an abuse of discretion and was in accordance with law.
{¶ 8} Former R.C.
The average weekly wage of an injured employee at the time of the injury or at the time disability due to the occupational disease begins is the basis upon which to compute benefits.
In cases of temporary total disability the compensation for the first twelve weeks for which compensation is payable shall be based on the full weekly wage of the claimant at the time of the injury or at the time disability due to occupational disease begins; when a factory, mine, or other place of employment is working short time in order to divide work among the employees, the bureau of workers' compensation shall take that fact into consideration when determining the wage for the first twelve weeks of temporary total disability.
See, also, former R.C.
{¶ 9} Although former R.C.
{¶ 10} However, "where an ambiguous statute is subject to an administrative history of interpretation, this court may defer to the administrative construction of the statute, unless the interpretation is clearly in error."In re Aultman Hosp. (1992),
{¶ 11} Because confusion and uncertainty arose concerning the computation of FWW under R.C.
WHEREAS confusion and uncertainty has arisen regarding the computation of the full weekly wage of injured employees under Ohio Revised Code section
WHEREAS the Industrial Commission and bureau of Workers' Compensation seek to achieve uniformity of treatment between state-fund and self-insuring employers;
THEREFORE BE IT RESOLVED, that the full weekly wage shall be computed in the following manner:
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:
a) the gross wages (including overtime pay) earned over the aforementioned six week period divided by six, or
b) the employee's gross wages earned for the seven days prior to the date of injury (excluding overtime pay).
For employees who have not been continuously employed for six weeks prior to the date of injury and who have not worked for at least seven days prior to the date of injury, the full weekly wage shall be computed by multiplying the employees' hourly rate times the number of hours he was scheduled to work for the week in which the injury occurred.
{¶ 12} Relator contends, however, that since the commission and BWC issued this joint resolution, the commission has rescinded Joint Resolution No. R80-7-48 and, therefore, the commission properly could not have relied upon this joint resolution when it determined relator's FWW. Notwithstanding relator's claim, according to the evidence in the record, the commission did not rescind this joint resolution. Rather, the commission indicated that Joint Resolution No. R80-7-48 was superseded by (1993) Am.Sub.H.B. No. 107, 145 Ohio Laws, Part II, 2990, effective October 20, 1993.
{¶ 13} Prior to (1993) Am.Sub.H.B. No. 107, the second paragraph of former R.C.
{¶ 14} Thus, in former R.C.
{¶ 15} Assuming Joint Resolution No. R80-7-48 applies, relator further objects to the magistrate's application of this joint resolution and the magistrate's distinction between "employed" and "worked" in her conclusions of law. In her decision, the magistrate stated, in part:
[Under Joint Resolution No. R80-7-48], there are two situations contemplated: (1) where the employee has either been continuously employed for six weeks prior to the injury or worked at least seven days prior to the injury; and (2) where the employee has not been continuously employed for six weeks prior to the injury and has not worked seven days prior to the injury. In the present case, relator had been employed by the employer since 1995. As such, although she has not actually worked (for personal reasons) for several weeks prior to her injury, she had been continuously employed for more than six weeks prior to her injury. As such, the first situation applies and the FWW is to be set at the higher of the two enumerated calculations. Applied to the present claim, because relator had not worked in the week prior to her date of injury, the wages for the six weeks prior to the date of injury, divided by six, is the appropriate formula which was applied by the commission in this case.
(Magistrate's Decision, Appendix A at ¶ 34; emphasis sic.)
{¶ 16} Relator asserts that it is unreasonable and unfair to differentiate between a claimant that is "employed" and one who is "working," and instead, the terms "employed" and "working" should be considered synonymous. We disagree. We find that the magistrate's distinction is reasonable, and the magistrate's legal conclusion is not inconsistent with the plain language of Joint Resolution No. R80-7-48 or former R.C.
{¶ 17} Based upon our independent review, and having previously acknowledged that relator has not objected to the magistrate's factual findings, we conclude that the magistrate properly discerned the pertinent facts and further conclude that the magistrate properly applied the relevant law to those facts when she recommended denial of relator's request for a writ of mandamus. Furthermore, as amplified here, we adopt the magistrate's decision as our own, including the magistrate's findings of fact and conclusions of law. Accordingly, we overrule relator's objections to the magistrate's decision and deny relator's request for a writ of mandamus.
Objections overruled; writ denied.
FRENCH and McGRATH, JJ., concur.
Relator, :
v. : No. 05AP-803
Industrial Commission of Ohio : and Whirlpool Corporation, : Respondents. :
Jim Petro, Attorney General, and Gerald H. Waterman, for respondent Industrial Commission of Ohio.
Bricker Maxfield, LLC, and Michael L. Maxfield, for respondent Whirlpool Corporation.
Findings of Fact:
{¶ 19} 1. Relator sustained a work-related injury on November 17, 2003, and was accepted by Whirlpool Corporation, a self-insured employer, for various conditions involving relator's right ankle and foot. Specifically, relator's claim has been allowed for "FX right ankle; sprain of right ankle; tenosynovitis, right; crushing injury right foot."
{¶ 20} 2. The record indicates that November 17, 2003, the date of relator's injury was also the first day that relator had returned to work following an absence. Relator had been off work for non-work-related medical problems prior to November 17, 2003, and had not worked for the seven days preceding her injury.
{¶ 21} 3. The self-insuring employer calculated relator's FWW and determined that her FWW should be set at $270.96 and disability compensation for the first 12 weeks of total disability was paid at that rate using that calculation.
{¶ 22} 4. On April 16, 2004, relator filed a motion requesting that her FWW be adjusted to $624 per week and that the previously awarded temporary total disability ("TTD") compensation paid to her be readjusted to reflect the increased amount.
{¶ 23} 5. Relator's motion was heard before a district hearing officer ("DHO") on June 10, 2004. The DHO granted relator's motion as follows:
It is the order of the District Hearing Officer that the full weekly wage be set at $691.84. Due to the fact that the injured worker's wages for the seven days as well as the six weeks prior to the date of injury are incomplete and inconsistent, the District Hearing Officer finds that it is most appropriate to utilize the average weekly wage of $691.84 as the figure for the full weekly wage.
In the six weeks prior to the date of injury of 11/17/2003, the injured worker did not receive earnings for three of those six weeks. Furthermore, there is no evidence indicating that the injured worker worked the full seven days prior to the date of injury. The injured worker missed these periods of time due to non-industrial medical leave. Both parties discussed the previous Industrial Commission Resolution dated 6/04/1980 addressing the full weekly wage. This joint Industrial Commission/BWC Resolution was later rescinded and never re-issued by the Industrial Commission. Currently, the BWC seems to utilize the elements that are outlined in that previous BWC/IC joint resolution. Due to the nature of the wage evidence in this situation, however, the District Hearing Officer finds that it is most equitable to utilize the average weekly wage for the purposes of setting the full weekly wage in this claim. A review of the wage information does point to the injured worker's consistent work history in the year prior to the date of injury.
For these reasons, the District Hearing Officer finds that the full weekly wage be set at $691.84. The District Hearing Officer has reviewed and considered all relevant evidence prior to rendering this decision. This order is based on the wage evidence in file.
{¶ 24} 6. The employer appealed and the matter was heard before a staff hearing officer ("SHO") on August 12, 2004. The SHO vacated the prior DHO order and determined that relator's FWW should be set at $270.96 as follows:
The Staff Hearing Officer agrees with the employer's argument at hearing that there is a lack of legal authority to set the full weekly wage at the same figure as the average weekly wage, which is $691.84. The Staff Hearing Officer finds that the claimant was continuously employed in the 6 weeks prior to injury, however did not earn wages for the entire 6 weeks as she was off for non-industrial medical leave. However, there is no provision in ORC
The Staff Hearing Officer has reviewed and considered all the evidence in file prior to rendering this decision. The Staff Hearing Officer relies on the wage information on file as provided by the self-insured employer, and on 4123.61, in rendering this decision.
(Emphasis sic.)
{¶ 25} 7. Relator's appeal was refused by order of the commission mailed September 2, 2004.
{¶ 26} 8. Relator's request for reconsideration was denied by order of the commission mailed October 8, 2004.
{¶ 27} 9. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
{¶ 28} In order for this court to issue a writ of mandamus as a remedy from a determination of the commission, relator must show that she has a clear legal right to the relief sought and that the commission has a clear legal duty to provide such relief. State ex rel. Pressley v. Indus. Comm. (1967),
{¶ 29} In this mandamus action, relator argues that R.C.
The average weekly wage of an injured employee at the time of the injury or at the time disability due to the occupational disease begins is the basis upon which to compute benefits.
In cases of temporary total disability the compensation for the first twelve weeks for which compensation is payable shall be based on the full weekly wage of the claimant at the time of the injury or at the time disability due to occupational disease begins; when a factory, mine, or other place of employment is working short time in order to divide work among the employees, the bureau of workers' compensation shall take that fact into consideration when determining the wage for the first twelve weeks of temporary total disability.
Compensation for all further temporary total disability shall be based as provided for permanent disability claims.
{¶ 30} As above indicated, R.C.
{¶ 31} With this in mind, the BWC established a joint resolution on June 4, 1980 to address the calculation of the FWW as follows:
WHEREAS confusion and uncertainty has arisen regarding the computation of the full weekly wage of injured employees under Ohio Revised code section
WHEREAS the Industrial Commission and bureau of Workers' Compensation seek to achieve uniformity of treatment between state-fund and self-insuring employers;
THEREFORE BE IT RESOLVED, that the full weekly wage shall be computed in the following manner:
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:
a) the gross wages (including overtime pay) earned over the aforementioned six week period divided by six, or
b) the employee's gross wages earned for the seven days prior to the date of injury (excluding overtime pay).
For employees who have not been continuously employed for six weeks prior to the date of injury and who have not worked for at least seven days prior to the date of injury, the full weekly wage shall be computed by multiplying the employees' hourly rate times the number of hours he was scheduled to work for the week in which the injury occurred.
(Emphasis sic.)
{¶ 32} As above indicated, there are two situations contemplated: (1) where the employee has either been continuously employed for six weeks prior to the injury or worked at least seven days prior to the injury; and (2) where the employee has not been continuously employed for six weeks prior to the injury and has not worked seven days prior to the injury. In the present case, relator had been employed by the employer since 1995. As such, although she had not actually worked (for personal reasons) for several weeks prior to her injury, she had been continuously employed for more than six weeks prior to her injury. As such, the first situation applies and the FWW is to be set at the higher of the two enumerated calculations. Applied to the present claim, because relator had not worked in the week prior to her date of injury, the wages for the six weeks prior to the date of injury, divided by six, is the appropriate formula which was applied by the commission in this case.
{¶ 33} Relator's argument is premised upon relator's assertion that the above joint resolution has been rescinded. Relator points out that in a July 1999 document containing a Table of Rescinded Superseded Modified Resolutions, R80-7-48 was "Superseded by H.B. 107 effective October 20, 1993."
{¶ 34} Under H.B. 107, responsibilities for the calculation of the AWW were transferred from the commission to the bureau. With the exception of substituting the bureau for the commission, new R.C.
{¶ 35} Based on the foregoing, the magistrate finds that relator has not demonstrated the commission abused its discretion by setting her FWW at $270.96 instead of calculating it in the manner relator suggests and relator's request for a writ of mandamus is denied.