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State ex rel R&L Carriers Shared Services12/1/2005
(REGULAR CALENDAR)
DECISION
IN MANDAMUS
{ } In this original action, relator, R&L Carriers Shared Services, L.L., seeks a writ of mandamus compelling respondent, the Industrial Commission of Ohio, to vacate its order setting the average weekly wage of respondent, Robert D. Alben ("claimant"), at $670.92, and to order the commission to re-determine claimant's average weekly wage without excluding a period when claimant was unemployed and actively seeking employment.
{ } The matter was referred to a magistrate pursuant to Civ.R. 53(C) and Loc.R. 12(M) of this court. The magistrate issued a decision that includes findings of fact and conclusions of law and recommended that this court deny the requested writ of mandamus. (Attached as Appendix A.) No objection has been filed to the magistrate's decision.
{ } Pursuant to Civ.R. 53(E)(4), the court conducted a full review of the magistrate's decision. The court finds that there is no error of law or other defect upon the face of the decision. Therefore, the court adopts the magistrate's decision. The requested writ of mandamus is denied.
Writ of mandamus denied.
SADLER and McGRATH, JJ., concur.
APPENDIX A
MAGISTRATE'S DECISION
Rendered on August 25, 2005
{ } Relator, R&L Carriers Shared Services, L.L., has filed this original action requesting that this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio ("commission") to vacate its order setting the average weekly wage ("AWW") of respondent Robert D. Alben ("claimant") at $670.93, and to order the commission to redetermine claimant's AWW without excluding the period of unemployment pursuant to State ex rel. Baker Concrete Constr., Inc. v. Indus. Comm., 102 Ohio St.3d 149, 2004-Ohio-2114.
Findings of Fact
{ } 1. Claimant sustained a work-related injury on October 14, 2003, when he was involved in a motor vehicle accident. Claimant's claim has been allowed for "sprain of neck; disc herniation C5-6; right shoulder rotator cuff tear; whiplash injury neck; aggravation of degenerative joint disease cervical spine."
{ } 2. On September 24, 2004, claimant filed a motion asking that his AWW be set at "$698.88 ($16,773.20 / 20 weeks worked)" and that the "remaining 28 weeks be excluded as he was unemployed and actively seeking employment."
{ } 3. On October 4, 2004, claimant filed a motion seeking wage loss compensation.
{ } 4. On October 12, 2004, claimant filed a motion requesting the payment of temporary total disability ("TTD") compensation.
{ } 5. All three motions were heard before a district hearing officer ("DHO") on November 22, 2004. The DHO first addressed claimant's motion for TTD compensation and ordered TTD compensation paid from August 25, 2004 through November 22, 2004, and to continue based upon the September 21, 2004 report of Dr. Senter and evidence of claimant's recent surgery. The DHO noted further that the employer, relator herein, did not challenge the application for TTD compensation.
{ } The DHO then addressed claimant's motion regarding his AWW and set the amount at "$429.23." The DHO explained his calculation and reasoning as follows:
* * * This figure was arrived at by totaling the earnings of the injured worker (less his unemployment benefits received) for the year prior to the date of injury and dividing by 38. ($16,310.60 divided by 38 = $429.23). Counsel for the injured worker was seeking the exclusion of as many as 28 weeks in the calculation as the injured worker was laid off from his job. Cou
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