[Cite as State ex rel. DPWN Holdings (USA), Inc. v. Indus. Comm., 2017-Ohio-8148.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

DPWN Holdings (USA), Inc., 

 : 

 Relator, 

 : 

v. No. 16AP-370 

 : 

Industrial Commission of Ohio (REGULAR CALENDAR) 

and : 

Bruce M. Parcell, 

 : 

 Respondents. 

 : 

 

D E C I S I O N 

Rendered on October 10, 2017 

 

On brief: Reminger Co., LPA, Arthur W. Brumett II, and 

Martin T. Galvin, for relator. Argued: Arthur W. 

Brumett II.

On brief: Michael DeWine, Attorney General, and Lisa R. 

Miller, and Natalie J. Tackett, for respondent Industrial 

Commission of Ohio. Argued: Natalie J. Tackett.

On brief: Gallon, Takacs, Boissoneault & Schaffer Co., LPA, 

and Theodore A. Bowman, for respondent Bruce M. Parcell. 

Argued: Theodore A. Bowman.

 

IN MANDAMUS 

ON OBJECTIONS TO THE MAGISTRATE'S DECISION 

LUPER SCHUSTER, J. 

{¶ 1} Relator, DPWN Holdings (USA), Inc. ("DPWN"), initiated this original 

action requesting a writ of mandamus ordering respondent, Industrial Commission of 

Ohio ("commission"), to vacate the January 27, 2016 order of its staff hearing officer 
No. 16AP-370 2 

("SHO") setting the average weekly wage ("AWW") of respondent, Bruce M. Parcell, at 

$771.18 and instead enter an order setting Parcell's AWW at $556.69.

{¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and 

Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision 

that includes findings of fact and conclusions of law. The magistrate's decision, which is 

appended hereto, recommends this court grant relator's request for a writ of mandamus 

ordering the commission to vacate its January 27, 2016 order and to enter an amended 

order that sets the AWW at $563.55. Both the commission and Parcell filed objections to 

the magistrate's decision. The matter is now before the court for our independent review. 

For the reasons that follow, we sustain the commission's and Parcell's objections, and we 

therefore deny the requested writ of mandamus.

{¶ 3} Because both the commission and Parcell have filed objections to the 

magistrate's decision, we must independently review the decision to ascertain whether 

"the magistrate has properly determined the factual issues and appropriately applied the 

law." Civ.R. 53(D)(4)(d). The commission and Parcell do not challenge the magistrate's 

recitation of the pertinent facts; however, both the commission and Parcell object to the 

magistrate's conclusion that the commission abused its discretion in finding "special 

circumstances" under R.C. 4123.61 when it determined Parcell's AWW to be $771.18. 

{¶ 4} In order for this court to issue a writ of mandamus as a remedy from a 

determination of the commission, the relator must show 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., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of 

mandamus exists where the relator shows that the commission abused its discretion by 

entering an order which is not supported by any evidence in the record. State ex rel.

Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). However, where the record contains 

some evidence to support the commission's findings, there has been no abuse of 

discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry 

Co., 29 Ohio St.3d 56 (1987).

{¶ 5} R.C. 4123.61 provides a standard formula for calculating an injured worker's 

AWW, and "[o]rdinarily, AWW is determined by dividing a claimant's earnings for the 

year preceding the injury by 52 weeks." State ex rel. Howard v. Indus. Comm., 10th Dist. 
No. 16AP-370 3 

No. 08AP-129, 2008-Ohio-5616, ¶ 6. Additionally, R.C. 4123.61 states that "[i]n cases 

where there are special circumstances under which the [AWW] cannot justly be 

determined by applying this section, the administrator of workers' compensation, in 

determining the [AWW] in such cases, shall use such method as will enable the 

administrator to do substantial justice to the claimants." Here, the magistrate determined 

that the commission abused its discretion in determining Parcell's AWW to be $771.18, 

concluding the SHO's January 27, 2016 order does not "set forth a factual and legal basis 

for finding special circumstances." (Mag. Decision at ¶ 33.)

{¶ 6} The magistrate relies almost entirely on this court's decision in Howard to 

conclude the commission abused its discretion in finding special circumstances. We agree 

with the magistrate that Howard is instructive; however, we disagree with the 

magistrate's application of Howard to the pertinent facts in the record.

{¶ 7} Howard notes that R.C. 4123.61 does not define either "special 

circumstances" or "substantial justice," and this court then explores various factors the 

commission may consider in finding "special circumstances." Howard at ¶ 7-11. Among 

those factors are (1) whether a claimant voluntarily limited his or her hours; (2) "the 

underlying factual circumstances surrounding the term of unemployment;" and (3) the 

proximity of the claimant's injury to the date the claimant obtained full-time employment. 

Though these are among the factors to be considered, Howard is clear that each case 

involving an allegation of special circumstances is unique and will depend heavily on the 

particular facts of that case. Howard at ¶ 12.

{¶ 8} In concluding the commission abused its discretion in finding special 

circumstances, the magistrate finds "[b]y inference" that Parcell was satisfied with parttime work while he worked for James Pharmacy, Inc. ("James Pharmacy") and that 

Parcell's decision to resign from James Pharmacy "was clearly a lifestyle choice." (Mag. 

Decision at ¶ 34.) The magistrate further states that Parcell "can not credibly claim that 

the period of unemployment following his resignation from employment at James 

Pharmacy was not a consequence of his earlier part-time lifestyle choice." (Mag. Decision 

at ¶ 34.) In his review, the magistrate appears to engage in his own evaluation of the 

witness' credibility. However, "questions of credibility and the weight to be given 

evidence are clearly within the discretion of the commission to resolve as fact finder." 
No. 16AP-370 4 

State ex rel. Ritzie v. Reece-Campbell, Inc., 10th Dist. No. 13AP-669, 2014-Ohio-2782, 

¶ 6, citing State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165, 169 (1981). 

{¶ 9} Moreover, even if Parcell's decisions to work part-time for James Pharmacy 

and eventually to resign can fairly be characterized as lifestyle choices, we nonetheless 

find the commission did not abuse its discretion in finding special circumstances existed 

in Parcell's case. As the Supreme Court of Ohio has held, "the purpose of the [AWW] * * * 

is 'to "find a fair basis for award for the loss of future compensation." ' " State ex rel. Ohio 

State Univ. Hosp. v. Indus. Comm., 118 Ohio St.3d 170, 2008-Ohio-1969, ¶ 6, quoting 

State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 286, 287 (1990), quoting Riley v. 

Indus. Comm., 9 Ohio App.3d 71, 73 (10th Dist.1983). Additionally, the application of 

"special circumstances" is appropriate when the AWW set using the standard calculation 

"is not a just barometer of the weekly earnings that [the claimant] has lost because of [his 

or her] industrial injury." State ex rel. Ohio State Univ. Hosp. at ¶ 17. Though the 

magistrate states "it takes time to find a new full-time job," the SHO expressly noted that 

Parcell had been unemployed since June 2010 and had only been successful in finding 

any employment, with James Pharmacy, in February 2014. The SHO considered both the 

reasons Parcell chose the employment with James Pharmacy to begin with and the 

reasons why Parcell chose to terminate that employment.

{¶ 10} The record demonstrates that in the year preceding Parcell's injury, Parcell 

worked for James Pharmacy for 9 weeks when he voluntarily resigned his position, was 

unemployed for 14 weeks, and worked full-time for DPWN for 29 weeks. In determining 

whether the standard calculation of AWW was substantially just, the SHO considered 

Parcell's work history both prior to and during the year immediately preceding his injury, 

and the record showed a substantial disparity between Parcell's earnings while working 

for DPWN and his earnings while working for James Pharmacy. In an effort to provide an 

AWW that more closely reflected the weekly earnings that Parcell had lost because of his 

industrial injury, the SHO eliminated the 14-week period of unemployment and instead 

calculated Parcell's AWW from his combined 38 weeks of employment with both James 

Pharmacy and DPWN. The resulting number, $771.18, was still significantly less than the 

average amount he earned per week when he actually worked for DPWN, which was 

$947.28. Considering both the purposes of the AWW and the case law discussing the 
No. 16AP-370 5 

application of "special circumstances," we conclude the SHO had some evidence to 

support his decision in both the application of special circumstances and the calculation 

of AWW at $771.18. Therefore, we do not adopt the magistrate's analysis regarding the 

application of special circumstances. For these reasons, we sustain both Parcell's and the 

commission's objections to the magistrate's decision. 

{¶ 11} Following our independent review of the record pursuant to Civ.R. 53, we 

find the magistrate erroneously determined that DPWN is entitled to the requested writ of 

mandamus. The magistrate properly set forth the pertinent facts and identified the 

pertinent law, but the magistrate erroneously applied the law to the salient facts. 

Accordingly, we adopt the factual findings of the magistrate, reject the conclusions of law 

devolving therefrom, and deny the requested writ.

Objections sustained; writ denied. 

TYACK, P.J., and BRUNNER, J., concur. 

 

 
No. 16AP-370 6 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

The State ex rel. : 

DPWN Holdings (USA), Inc., 

 : 

 Relator, 

 : 

v. No. 16AP-370 

 : 

Industrial Commission of Ohio (REGULAR CALENDAR) 

and : 

Bruce M. Parcell, 

 : 

 Respondents. 

 : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on May 24, 2017

 

Reminger Co., LPA, Arthur W. Brumett II, and Martin T. 

Galvin, for relator. 

Michael DeWine, Attorney General, and Lisa R. Miller, for 

respondent Industrial Commission of Ohio. 

Gallon, Takacs, Boissoneault & Schaffer Co., LPA, and 

Theodore A. Bowman, for respondent Bruce M. Parcell. 

 

IN MANDAMUS 

{¶ 12} In this original action, relator, DPWN Holdings (USA), Inc. ("relator" or 

"DPWN") requests a writ of mandamus ordering respondent Industrial Commission of 

Ohio ("commission") to vacate the January 27, 2016 order of its staff hearing officer 

("SHO") that sets the average weekly wage ("AWW") at $771.18 based on the earnings of 

respondent, Bruce M. Parcell, during the year prior to the date of injury divided by 38 
No. 16AP-370 7 

weeks, and to enter an order that sets AWW at $556.69 based on earnings during the 

year prior to the date of injury divided by 52 weeks. 

Findings of Fact: 

{¶ 13} 1. On March 9, 2015, Bruce Parcell ("claimant") sustained an industrial 

injury while employed as a full-time tractor-trailer driver for relator, a self-insured 

employer under Ohio's workers' compensation laws. The industrial claim (No. 15-

812079) is allowed for "sprain, right ankle; right chronic achilles rupture." 

{¶ 14} 2. Earlier, in February 2014, claimant began part-time employment as a 

delivery driver for James Pharmacy, Inc. He had been unemployed since June of 2010. 

He was employed at an hourly rate and used his personal vehicle to deliver prescription 

medications to James Pharmacy customers. He was also reimbursed for miles driven. 

{¶ 15} 3. Claimant continued to work for James Pharmacy through May 10, 2014 

when he voluntarily resigned his position as a delivery driver.

{¶ 16} 4. Claimant remained unemployed for an approximate 14-week period 

until he began employment with DPWN on August 18, 2014 as a full-time tractor-trailer 

driver. Claimant continued to work for DPWN until his industrial injury of March 9, 

2015. Claimant was employed with DPWN for a 29-week period up to his date of injury. 

{¶ 17} 5. As a self-insured employer, DPWN calculated AWW at $556.69. 

DPWN's calculation sheets of record show that claimant was employed at DPWN for 29 

weeks and at James Pharmacy for 9 weeks during the year prior to the date of injury. 

Thus, claimant was employed a total of 38 weeks during the year prior to the date of 

injury. He was unemployed for 14 weeks.

{¶ 18} 6. DPWN's calculation sheets show that claimant earned a total of 

$28,947.85 during the year prior to the date of injury. That figure includes earnings at 

both James Pharmacy and DPWN. DPWN divided total earnings by 52 weeks to obtain 

AWW at $556.69 ($28,947.85 ÷ 52= $556.69). 

{¶ 19} 7. DPWN's calculation sheets also show that the highest weekly amount 

claimant earned at DPWN was $1,145.90 on February 22, 2015. The lowest weekly 

amount claimant earned at DPWN was $710.65 on September 7, 2014. 
No. 16AP-370 8 

{¶ 20} 8. On October 9, 2015, claimant moved that his AWW be reset at $771.18. 

In support, claimant submitted a calculation sheet produced by the law firm 

representing claimant, i.e., Gallon, Takacs, Boissoneault & Schaffer Co., LPA ("Gallon"). 

The Gallon calculation sheet shows that claimant earned a total of $29,304.70 during 

the year prior to the date of injury while employed with DPWN and James Pharmacy. 

That figure is divided by 52 weeks for an AWW calculation of $563.55. 

{¶ 21} 9. Claimant also submitted a C-94-A Wage Statement from James 

Pharmacy showing that, during the nine-week period, claimant earned a total of 

$1,832.60 at James Pharmacy.

{¶ 22} 10. In further support of his October 9, 2015 motion, claimant submitted a 

single-page document captioned "Affidavit." However, the document of record fails to 

show that the document was executed by claimant and notarized. The document states: 

I, Bruce Parcell, do state the following is true and accurate to 

the best of my knowledge. 

I sustained an industrial injury on March 9, 2015. This 

affidavit is to outline my employment during the year prior 

to my industrial injury. 

From March 9, 2014 through May 11, 2014 I was employed 

as a part-time delivery driver for James Pharmacy. 

Unfortunately, the pay was not sufficient enough to make the 

job worthwhile, especially given the wear and tear that was 

put on my own vehicle. From May 12, 2014 through 

August 17, 2014 I was out of the work force actively seeking 

employment. I was successful in finding employment with 

the instant employer where I began working August 18, 2014 

and continued up until the time I was injured. 

At this time, I respectfully request that my average weekly 

wage be recalculated and that the 14 weeks where I had no 

earnings be excluded from the calculation. I request that my 

total earnings of $29,304.70 be averaged over the 38 weeks I 

worked and that my average weekly wage be reset at $771.18. 

I believe this figure best reflects my earning capacity at the 

time of the industrial injury. 

Further, affiant sayeth naught. 
No. 16AP-370 9 

{¶ 23} 11. Following a December 14, 2015 hearing, a district hearing officer 

("DHO") issued an order denying claimant's motion to reset his AWW. The DHO's 

order explains: 

The Hearing Officer orders the average weekly wage to 

remain as set by the Self-Insuring Employer at $556.69. 

The Injured Worker testified, and his affidavit reflects, that 

he was looking for work while working his part-time job. 

However, on 05/11/2014 he voluntarily resigned from that 

part-time position, prior to obtaining another position. The 

Injured Worker testified, and it is reflected in his affidavit, 

that he felt the part-time pay was not sufficient to make the 

job worthwhile, especially given the wear and tear it put on 

his vehicle. Therefore, there is no dispute the Injured 

Worker's lac[k] of work beginning 05/11/2014, until he was 

hired 08/18/2014, by another company, was the Injured 

Worker's choice and not beyond his control. 

Therefore, Hearing Officer finds that the above wage rate [] 

is reasonable and affords substantial justice to the Injured 

Worker. 

The Hearing Officer notes that the Injured Worker's period 

of unemployment was not beyond his control. Therefore it 

would be inappropriate to exclude those weeks from the 

wage calculation. The Hearing Officer does not find sufficient 

circumstances to warrant a special circumstances 

recalculation of the rate. 

The Hearing Officer finds the average weekly wage remains 

as set at $556.69. 

The Self-Insuring Employer is hereby ordered to comply 

with the above findings. 

{¶ 24} 12. Claimant administratively appealed the DHO's order of December 14, 

2015. 

{¶ 25} 13. Following a January 27, 2016 hearing, an SHO issued an order that 

vacates the DHO's order of December 14, 2015, grants claimant's motion, and resets 

AWW at $771.18. The SHO's order of January 27, 2016 explains: 

The Injured Worker's C-86 Motion, filed 10/09/2015, 

requests that the Injured Worker's Average Weekly Wage be 
No. 16AP-370 10 

reset at the figure of $771.18, which is an increase from the 

setting of the Average Weekly Wage made by the SelfInsuring Employer at $556.69. 

* * * 

Ohio Revised Code Section [4]123.61 provides the basis for 

calculating the Average Weekly Wage. That section provides, 

in pertinent part, that "The claimant's ... Average Weekly 

Wage for the year preceding the injury or the date of the 

disability due to the occupational disease begins is the 

weekly wage upon which compensation shall be based. In 

ascertaining the Average Weekly Wage for the year previous 

to the injury, or the date the disability due to the 

occupational disease begins, any period of unemployment 

due to sickness, industrial depression, strike, lockout, or 

other cause beyond the employee's control shall be 

eliminated. 

The Injured Worker is requesting that the period of weeks 

from 05/12/2014 through 08/17/2014 be eliminated when 

calculating the Average Weekly Wage. 

The Injured Worker's testimony at hearing, on Wednesday 

01/27/2016, indicates that he had been unemployed since 

June of 2010, and had just obtained part-time employment 

as a delivery driver for James Pharmacy, Incorporated, on 

Lagrange Street in Toledo, Ohio, in February of 2014. He 

continued working that job through 05/10/2014. He was 

paid an hourly wage plus a per miles driven rate for the use 

of his personal vehicle when he delivered the prescriptions. 

His average weekly earnings, while working for James 

Pharmacy during the period from 03/09/2014 through 

05/10/2014, was $183.26 per week. He testified that he did 

not believe that the amount of weekly earnings from James 

Pharmacy made the job "worthwhile." One of his reasons was 

because of the wear-and-tear that he had to put on his own 

personal vehicle. Furthermore, he testified that the area 

served by James Pharmacy was an inner-city area in a high 

crime area, which was yet another reason he did not want to 

continue that part-time employment. Therefore, the Injured 

Worker terminated his employment with James Pharmacy as 

of 05/10/2014, and he then began a full-time search for 

other employment. 
No. 16AP-370 11 

The Injured Worker then began employment with Deutshe 

Post World Net (DPWN) Holdings (USA), Incorporated, 

doing business as Exel, Incorporated, on 08/18/2014. He 

was hired as a full-time tractor-trailer driver, pulling a 48 

foot trailer. His job involved unloading and delivering auto 

parts to seven dealers in the State of Michigan. That position 

was a full-time permanent position. He still remains an 

employee and hopes to return to that former position of 

employment. 

It is the finding of this Staff Hearing Officer that the Injured 

Worker's period of unemployment, from 05/11/2014 through 

08/17/2014, was not due to "sickness, industrial depression, 

strike, lock-out, or other cause beyond the employee's 

control" (emphasis added) and, therefore, shall not be 

eliminated pursuant to the above-cited exception in regard to 

the calculation of the Average Weekly Wage pursuant to 

Ohio Revised Code Section 4123.61 

However, there is a second exception, under Ohio Revised 

Code Section 4123.61 which provides, in pertinent part, that 

"in cases where there are special circumstances under which 

the Average Weekly Wage cannot justly be determined by 

applying this section, the Commission... shall use such 

method as will enable it to do substantial justice to the 

claimants." 

The Court of Appeals of Ohio previously addressed the issue 

of such an exception for an employee who had a voluntary 

period of employment, in the case of State ex rel. Exel 

Logistics, Incorporated v. Industrial Commission, 2004-

Ohio-3594. In the Exel Logistics case, the Court of Appeals 

quoted the prior case of Riley v. Industrial Commission 

(1983), 9 Ohio App.3d, and specifically held that, "Even 

where the period of employment before the new job was 

voluntary, the worker may qualify for the 'special 

circumstances' exception, depending on the circumstances." 

The Court of Appeals then went on to further quote from the 

Riley case and stated that the evidence showed that, "There 

is no indication that relator did not intend to work regularly 

in the future; in fact, the evidence is all to the contrary." 

Furthermore, the Ohio Supreme Court, in the case of State 

ex rel. Ohio State University Hospital v. Industrial 

Commission, 118 Ohio St.3d 170, held that the "special 

circumstances" provision of Ohio Revised Code Section 
No. 16AP-370 12 

4123.61 applied to the facts in that case, because "the figure 

obtained by application of the standard formula did not 

fairly represent the wages the claimant lost due to her 

injury." The Ohio Supreme Court, in the Ohio State 

University Hospital case also referred to the Riley case and 

stated that the application of the standard formula for 

calculating the Average Weekly Wage was, "obviously an 

unjust barometer of relator's prospective future average 

wages that would be lost if he could not work." 

Likewise, in the instant case, the standard calculation of the 

Average Weekly Wage results in a setting of the Average 

Weekly Wage at the figure of $563.55. The least amount that 

the Injured Worker earned with the Employer of Record was 

$710.65 for the week ending 09/07/2014, and he had earned 

as much as $1,145.90 during the week ending 02/22/2015. 

Thus, the Injured Worker averaged $947.28 for the 29 weeks 

that he worked for Deutshe Post World Net (DPWN) 

Holdings (USA), Incorporated prior to the recognized date of 

injury of 03/09/2015. 

Thus, it is the finding of this Staff Hearing Officer that the 

current setting of the Average Weekly Wage at the figure of 

$563.55 is not substantially just, since that figure is $383.73 

less than the Injured Worker's average earnings with the 

Employer of Record. 

Thus, on the authority of the cases cited above, it is the 

finding of this Staff Hearing Officer that the Injured Worker 

has met his burden of demonstrating that special 

circumstances exist in the instant claim which render the 

usual calculation of the Average Weekly Wage as an unjust 

method of determining his Average Weekly Wage. 

Therefore, it is the order of this Staff Hearing Officer that the 

Injured Worker's Average Weekly Wage is hereby set at the 

figure of $771.18, based upon the Injured Worker's earnings 

of $29,304.70 for the 52 weeks prior to his date of injury of 

03/09/2015, and dividing by 38 weeks actually worked 

(eliminating 14 weeks of unemployment from the 

calculation), based upon the "special circumstances" 

provision of Ohio Revised Code Section 4123.61. 

(Emphasis sic.) 
No. 16AP-370 13 

{¶ 26} 14. On February 23, 2016, another SHO mailed an order refusing relator's 

administrative appeal from the SHO's order of January 27, 2016. 

{¶ 27} 15. On March 22, 2016, the three-member commission mailed an order 

that denies relator's motion for reconsideration. 

{¶ 28} 16. On May 13, 2016, relator, DPWN Holdings (USA), Inc., filed this 

mandamus action. 

Conclusions of Law: 

{¶ 29} The issue is whether the commission abused its discretion in setting AWW 

at $771.18 by dividing claimant's earnings during the year prior to the date of injury by 

38 weeks based on a finding of special circumstances. 

{¶ 30} Finding that the commission abused its discretion in finding special 

circumstances that justifies elimination of 14 weeks of unemployment during the year 

prior to the date of injury, it is the magistrate's decision that this court issue a writ of 

mandamus, as more fully explained below. 

{¶ 31} R.C. 4123.61 provides: 

The average weekly wage of an injured employee at the time 

of the injury * * * is the basis upon which to compute 

benefits. 

* * * 

[T]he claimant’s * * * average weekly wage for the year 

preceding the injury * * * is the weekly wage upon which 

compensation shall be based. In ascertaining the average 

weekly wage for the year previous to the injury, * * * any 

period of unemployment due to sickness, industrial 

depression, strike, lockout, or other cause beyond the 

employee’s control shall be eliminated. 

In cases where there are special circumstances under which 

the average weekly wage cannot justly be determined by 

applying this section, the administrator of workers’ 

compensation, in determining the average weekly wage in 

such cases, shall use such method as will enable the 

administrator to do substantial justice to the claimants. 
No. 16AP-370 14 

{¶ 32} In State ex rel. Howard v. Indus. Comm., 10th Dist. No. 08AP-129, 2008-

Ohio-5616, this court had occasion to analyze the pertinent case law that defines "special 

circumstances" and "substantial justice." Howard is instructive here, and it states: 

As "special circumstances" and "substantial justice" are not 

defined, we must turn to case law to compare relator's 

circumstances to those of others who have been granted or 

denied an adjustment to the standard AWW calculation 

based upon special circumstances or a lack thereof. The 

"special circumstances" exception found in R.C. 4123.61 has 

been used when the wages earned prior to the injury do not 

reflect the claimant's earnings at the time of the injury and 

has generally been confined to uncommon situations 

involving the claimant's age, education, and background. See 

State ex rel. Wireman v. Indus. Comm. (1990), 49 Ohio 

St.3d 286, 288, 551 N.E.2d 1265. Both relator and the 

commission, here, rely largely on the same three cases to 

support their opposing positions, although each interprets 

them differently. In State ex rel. Ohio State Univ. Hosp. v. 

Indus. Comm., 118 Ohio St.3d 170, 2008 Ohio 1969, 887 

N.E.2d 325, the injured worker had graduated in June 2003 

from a radiology technology program and began working full 

time at the Ohio State University Hospital ("OSU"), but was 

injured soon after commencing work in September 2003. 

The year prior to her injury, she had had taken a part-time 

job at a low wage while she recovered from an injury, and 

then she abandoned the work force to re-enroll in school. 

The commission granted her an adjusted AWW based upon 

special circumstances. Citing two cases, Riley, supra, and 

State ex rel. Clark v. Indus. Comm. (1994), 69 Ohio St.3d 

563, 1994 Ohio 396, 634 N.E.2d 1014, the Ohio Supreme 

Court found that special circumstances warranted a 

departure from the standard calculation because it was the 

injured worker's first time in the full-time work force, and 

the work force entrance followed a period of specialized 

education and training in a field with enhanced income and 

career potential. Ohio State Univ. Hosp., at ¶ 17. Under these 

circumstances, found the court in Ohio State Univ. Hosp., 

the AWW using the standard calculation was not a just 

barometer of the weekly earnings that the injured worker 

lost because of her industrial injury. Id.

In Riley, an employee began a full-time job after a period 

during which he chose not to work because he had other 

income. After returning to the labor market, he was injured 
No. 16AP-370 15 

after three weeks at the new job. The evidence indicated, 

however, that the injured worker would have continued to be 

employed in his job and would have continued to earn his 

same salary. This court found no indication that the worker 

did not intend to work regularly in the future. Thus, this 

court found special circumstances existed to depart from the 

standard calculation under R.C. 4123.61. 

In Clark, the Ohio Supreme Court found that, even though 

the claimant's reduced hours were voluntarily undertaken, 

"special circumstances" existed. The court explained that, 

even when a claimant has voluntarily limited her hours, the 

commission must inquire further to determine if "special 

circumstances" exist. In Clark, the claimant had left full-time 

work to care for her granddaughter who suffered severe 

psychiatric problems. When her granddaughter's situation 

changed, the claimant re-entered the work force and worked 

at a restaurant a few hours per week to see how her 

granddaughter would adjust to her absence. She was injured 

during her first month of employment. After her injury, she 

obtained full-time employment, where she earned 

substantially more per week than at the restaurant. The court 

found that "special circumstances" existed and that 

substantial justice would not be done, in that case, if the 

standard formula was applied. 

Relator contends that the special circumstance found in 

Riley was not that the claimant had other income that 

allowed him not to work in the year prior to the injury, as the 

commission contends but, rather, that the claimant first 

became employed only three weeks before the injury. 

Likewise, with regard to Clark, relator contends that the 

special circumstance was the proximity of the claimant's date 

of injury to her re-entry into the work force, rather than the 

fact that the claimant had been forced from the work force 

for the year prior to the injury in order to get custody of her 

abused granddaughter, as the commission asserts. Similarly, 

with regard to Ohio State Univ. Hosp., relator contends that 

the special situation was an injury that quickly followed an 

entry into the work force, and not the fact that the claimant 

entered into full-time work after a period of specialized 

education and training in a field that enhanced her income 

potential, as the commission asserts. Thus, relator insists 

that the special circumstance in all of the above cases is the 

same as hers, i.e., an injury quickly following a re-entry into 
No. 16AP-370 16 

the work force after an extended absence, and the 

commission did not need to look any further than this fact. 

Initially, we agree with relator that both Riley and Clark 

suggest that the special circumstance in those cases was an 

injury quickly following a re-entry into the work force after 

an extended absence. Although both cases involved factual 

backgrounds that provided unique circumstances, and 

although the Ohio Supreme Court and this court both 

endeavored to point out and discuss those backgrounds, the 

actual conclusions in those cases mention only the close 

proximity of the injury to the commencement of the job. For 

example, in Clark, the court stated, "[i]n Riley, supra, the 

proximity of the claimant's date of injury to his reentry into 

the work force constituted a 'special circumstance.' We find 

the same to exist in this case." Clark, at 565. In Riley, this 

court stated, "[t]he fact that relator first became employed 

only three weeks before the injury clearly constitutes a 

special circumstance since the average weekly wage is 

established to find a fair basis for award for the loss of future 

compensation." Riley, at 73. 

However, we are unable to decisively conclude herein that 

the close proximity of the injury to the start of employment 

was the sole reason for finding special circumstances in these 

cases. As mentioned above, in Riley and Clark, this court and 

the Ohio Supreme Court specifically endeavored to detail the 

reasons underlying the absence from the work force for the 

prior year. Particularly, with regard to our decision in Riley, 

we pointed out, "[t]he unusual circumstances shown by 

relator were that, because of other income, he had no need to 

work and did not work for forty-nine of the fifty-two 

previous weeks. There is no indication that relator did not 

intend to work regularly in the future; in fact, the evidence is 

all to the contrary." Riley, at 72. Thus, it is arguable that the 

underlying factual circumstances surrounding the term of 

unemployment also played into our final conclusion in Riley 

that special circumstances existed. 

In Ohio State Univ. Hosp., it is even more apparent that the 

Ohio Supreme Court based its finding of special 

circumstances not only upon the unusually short period of 

employment prior to the injury, but, also, upon the reasons 

underlying the term of unemployment in the year prior to 

the injury. In that case, the staff hearing officer ("SHO") 

concluded: 
No. 16AP-370 17 

Claimant testified that she was recruited by OSU in June 

2000 for a job upon graduation from Wheeling Hospital's 

radiological technician program for a full-time position 

paying $ 16.45 per hour. Claimant further testified that due 

to an injury she had to interrupt her schooling in 09/2001 

and took whatever work was available in the vicinity-and 

could only work part-time until she resumed her education, 

graduated, and moved to OSU to the job for which she had 

been recruited. 

The Staff Hearing Officer finds such sequence of events to 

constitute special circumstances requiring an alternative 

means of setting the average weekly wage. * * * 

(Emphasis added.) Ohio State Univ. Hosp., at ¶ 9-10. The 

Ohio Supreme Court reiterated the unusual underlying 

circumstances in affirming the decision of the DHO: 

We affirmed the Riley position in Clark and are guided by 

that reasoning in this case. This was not Burns's first foray 

into the workforce, but it certainly appears to be her first 

time in the full-time workforce. This workforce entrance, 

moreover, followed a period of specialized education and 

training in a field with enhanced income and career 

potential. Burns's efforts were rewarded when she was hired 

by OSU Hospital. Under these circumstances, the average 

weekly wage set by the bureau using the standard calculation 

is not a just barometer of the weekly earnings that Burns has 

lost because of her industrial injury. 

(Emphasis added.) Id., at ¶ 17. Thus, it is apparent from the 

preceding that, in addition to the short period between reentry into the work force and the injury, the Ohio Supreme 

Court found special circumstances existed that made the 

usual calculation method for AWW substantially unjust 

because the claimant had just re-entered the work force after 

a period of specialized education and training to enhance her 

income and career potential. 

Here, relator asserted that her unemployment from August 

2005 to May 2006 should be excluded from the calculation 

of AWW because her absence from the work force during this 

period was due to her decision to stay at home to care for her 

children. We agree with the commission that this reason 

alone is not compelling enough to warrant "special 

circumstances." The Ohio Supreme Court has "decisively 
No. 16AP-370 18 

declared that workers' compensation benefits are not 

intended to subsidize lifestyle choices." State ex rel. Baker 

Concrete Constr., Inc. v. Indus. Comm., 102 Ohio St.3d 149, 

2004 Ohio 2114, at ¶ 18, 807 N.E.2d 347. For example, the 

Ohio Supreme Court has declined to award impaired earning 

capacity benefits to a claimant who left the labor market to 

stay home with her children. Id., citing State ex rel. Pauley v. 

Indus. Comm. (1990), 53 Ohio St.3d 263, 559 N.E.2d 1333. 

In Baker, the court noted that the phrase "lifestyle choice" is 

also relevant in calculating AWW. Id. The court concluded in 

Baker, if unemployment springs from a lifestyle choice, then 

those weeks of unemployment are not beyond a claimant's 

control and omitting those weeks from the AWW contradicts 

both the statute and case law. Id. Therefore, Baker supports 

a finding that relator's unemployment due to her voluntary 

decision to stay home with her children was a lifestyle choice 

that should not provide her a windfall when calculating her 

AWW. 

(Emphasis sic.) Id. at ¶ 7-14. 

{¶ 33} Clearly, the SHO's order of January 27, 2016 fails to set forth a factual and 

legal basis for finding special circumstances. Therefore, the SHO's determination that 

AWW is $771.18 must be vacated. 

{¶ 34} Analysis begins with the observation that claimant does not claim that he 

was searching for full-time work while employed part-time as a delivery driver for 

James Pharmacy. Rather, he only claims that he was searching for employment during 

the 14-week period of unemployment. That is, in his so-called affidavit, claimant avers 

"[f]rom May 12, 2014 through August 17, 2014 I was out of the work force actively 

seeking employment." By inference, claimant indicates that he was satisfied with parttime work although he was concerned about the wear and tear on his vehicle. Thus, 

claimant's part-time employment at James Pharmacy was clearly a lifestyle choice. 

Given the lifestyle choice while employed part-time, claimant can not credibly claim that 

the period of unemployment following his resignation from employment at James 

Pharmacy was not a consequence of his earlier part-time lifestyle choice. Simply put, it 

takes time to find a new full-time job. 

{¶ 35} Given this analysis, it was clearly an abuse of discretion for the 

commission to find "special circumstances" under R.C. 4123.61. 
No. 16AP-370 19 

{¶ 36} It can be further observed that the SHO relied on the Gallon calculation 

sheet showing that claimant earned a total of $29,304.70 during the year prior to the 

date of injury. Thus, it can be said that the SHO did not accept DPWN's calculation 

sheet showing that claimant earned $28,947.85 during the year prior to the date of 

injury. As earlier noted, DPWN determined that AWW is $556.69 by dividing total 

earnings for the year prior to the date of injury by 52 weeks. 

{¶ 37} Given that the SHO accepted the Gallon calculation sheet showing that 

claimant earned a total of $29,304.70 during the year prior to the date of injury, the 

SHO should have entered a finding that AWW is set at $563.55. 

{¶ 38} Accordingly, it is the magistrate's decision that this court issue a writ of 

mandamus ordering the commission to vacate the finding of special circumstances in 

the SHO's order of January 27, 2016, and to enter an amended order that sets AWW at 

$563.55. 

 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as 

error on appeal the court's adoption of any factual finding or 

legal conclusion, whether or not specifically designated as a 

finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically objects 

to that factual finding or legal conclusion as required by Civ.R. 

53(D)(3)(b).