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State ex rel McDulin v. Industrial Commission of Ohio8/9/2000
Workers' compensation - Industrial Commission does not abuse its discretion in failing to include claimant's form 1999 "miscellaneous income" in the computation of claimant's average weekly wage.
Submitted April 25, 2000
In early 1995, appellant-claimant Stephen G. McDulin filed applications for workers' compensation benefits with the Bureau of Workers' Compensation. He alleged wrist problems stemming from an October 20, 1994 fall, while employed at Contract Communications Company ("CCC"). His employer certified the claim as valid but expressed concern over the extent of claimant's disability.
Based on the employer's certification, the claim was apparently allowed without hearing. CCC appealed the decision, seemingly contesting the validity of the claim and/or the payment of further compensation. That appeal was dismissed as untimely by the appellee, Industrial Commission of Ohio.
At the same time, the Bureau of Workers' Compensation set claimant's average weekly wage ("AWW") and full weekly wage at $782.69, based on wages of $33,096.46 divided by 42 2/7 weeks. Twenty months later, CCC sent a letter to the bureau, which alleged that claimant's claim was fictitious and fraudulent. For reasons that are not clear, the commission interpreted the letter as a request to review claimant's full weekly and average weekly wages. A district hearing officer halved the amount of claimant's AWW, writing:
"It is the order of the District Hearing Officer that the Average Weekly Wage is set at $391.11.
"Based upon the reported wages the year prior to the injury[,] of $20,337.67 divided by 52 weeks worked. The claimant appears to have received other monies that were reimbursement for truck and tools, etc. These monies were not shown to be wages for purposes of including the amount in the figuring of the Average Weekly Wage. Per the claimant's contract, he had to provide a list of tools and safety equipment which he appears to have been reimbursed for per testimony and pay records. Reimbursement for the use of claimant's truck may have been part of the reimbursement plan.
"The wages of $20,337.67 is based upon the accountant's 10-2-96 correspondence and employer documents reporting wages for the claimant."
A staff hearing officer modified the calculation slightly:
"The full weekly wage and average weekly wage are set at $400.00 based on testimony and evidence that claimant was being paid $10.00 per hour and normally worked a 40 hour week. The remainder of claimant's remuneration consisted of expense reimbursements (i.e., per diem of lodging and meal expenses, and expenses for the use of claimant's truck and tool ), which are not properly includable in claimant's wages for purposes of calculating the full weekly wage and average weekly wage. Claimant has not submitted any evidence in the form of tax records (e.g., 1040s) to rebut this."
Claimant filed a complaint in mandamus in the Court of Appeals for Franklin County, alleging that the commission abused its discretion in lowering his AWW. The court of appeals disagreed and denied the writ.
This cause is now before this court upon an appeal as of right.
"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." R.C. 4123.61.
The "standard formula for establishing [average weekly wage] is to divide claimant's earnings for the year preceding injury by fifty-two weeks." State ex rel. Clark v. Indus. Comm. (1994), 69 Ohio St.3d 563, 565, 634 N.E.2d 1014, 1016. Claimant asks us to s
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