[Cite as State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm., 126 Ohio St.3d 37, 

2010-Ohio-2451.] 

THE STATE EX REL. FEDEX GROUND PACKAGE SYSTEM, INC., APPELLANT, v.

INDUSTRIAL COMMISSION OF OHIO ET AL., APPELLEES. 

[Cite as State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm., 126 

Ohio St.3d 37, 2010-Ohio-2451.] 

Workers’ compensation — R.C. 4123.61 — Calculation of average weekly wage 

and full weekly wage — Claimant with multiple jobs — Industrial 

Commission did not abuse discretion in including wages from second job 

in calculation of average and full weekly wage for purposes of 

determining amount of temporary total disability compensation for injury 

on first job. 

(No. 2009-0918 — Submitted March 30, 2010 — Decided June 8, 2010.) 

APPEAL from the Court of Appeals for Franklin County, No. 07AP-959, 

182 Ohio App.3d 152, 2009-Ohio-1708. 

__________________ 

Per Curiam. 

{¶ 1} Appellee Christopher J. Roper was working multiple jobs at the 

time of his industrial injury. We must determine which wages are to be included 

in the calculation of his average weekly wage (“AWW”) and full weekly wage 

(“FWW”). 

{¶ 2} Roper began working part-time for appellant FedEx Ground 

Package System, Inc., in 2004. Roper generally made between $190 and $250 per 

week. In April 2006, Roper took a second job with Integrated Pest Control that 

paid considerably more than the job at FedEx. Roper was also operating a side 

business, Affordable Animal Removal, concurrently with the other two jobs. 

{¶ 3} On October 24, 2006, Roper was injured at FedEx. FedEx, a selfinsured employer, set Roper’s AWW at $160.45, and his FWW at $250.80, based 
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solely on his earnings at FedEx. Roper moved appellee Industrial Commission of 

Ohio to reset his average and full weekly wages based on his combined earnings 

from FedEx and Integrated Pest Control. 

{¶ 4} A district hearing officer, citing the “special circumstances” 

provision of R.C. 4123.61, granted Roper’s motion and reset his AWW at 

$417.05, and FWW at $457.36, based on income from both jobs.1

 That order was 

administratively affirmed. 

{¶ 5} FedEx filed a complaint in mandamus in the Court of Appeals for 

Franklin County, alleging that the commission abused its discretion in increasing 

Roper’s full and average weekly wages. The court of appeals disagreed and 

denied the writ, prompting FedEx’s appeal to this court as of right. 

{¶ 6} At issue is the commission’s inclusion of Roper’s additional wages 

from Integrated Pest Control when computing his full and average weekly wage. 

Our review supports these calculations. 

{¶ 7} The AWW “is the basis upon which to compute benefits,” R.C. 

4123.61, and “should approximate the average amount that the claimant would 

have received had he continued working after the injury as he had before the 

injury.” State ex rel. Erkard v. Indus. Comm. (1988), 55 Ohio App.3d 186, 188, 

563 N.E.2d 310. The AWW must do the claimant “substantial justice” without 

providing a windfall. State ex rel. Logan v. Indus. Comm. (1995), 72 Ohio St.3d 

599, 600, 651 N.E.2d 1008. 

{¶ 8} R.C. 4123.61 refers to the claimant’s “average weekly wage for the 

year preceding the injury,” so the AWW is typically based on the employee’s 

earnings for the year prior to injury divided by 52 weeks. State ex rel. Clark v. 

Indus. Comm. (1994), 69 Ohio St.3d 563, 565, 634 N.E.2d 1014. This formula 

can, however, be abandoned if there are “special circumstances under which the 

 

1. Federal tax records established that Roper’s Affordable Animal Removal operated at a loss 

over the relevant period. 
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average weekly wage cannot justly be determined” by applying that formula. 

R.C. 4123.61. When that occurs, the administrator of the Bureau of Workers’ 

Compensation “shall use such method as will enable the administrator to do 

substantial justice to the claimants.” Id. 

{¶ 9} Roper worked at FedEx and Integrated Pest Control concurrently. 

The district and staff hearing officers concluded that Roper’s additional 

employment with Integrated Pest Control was a special circumstance that 

warranted inclusion of those earnings in the aggregate wages for the year 

preceding injury. The commission defends the amount set, but now states that the 

hearing officers erred in using the special-circumstances provision, because the 

standard calculation already demands inclusion of all wages earned in the year 

prior to injury. 

{¶ 10} FedEx argues that inclusion of wages from other, concurrent 

employment discourages claimants from continuing to work at the second job if 

they are medically able. The higher AWW that results from combining wages 

“creates a disincentive for employees to return to the workplace,” FedEx claims. 

FedEx also believes that it is unfair to require an employer to pay weekly 

temporary total disability benefits that exceed the weekly amount that the 

claimant made while in its employ. FedEx urges us to exclude secondary wages 

in their entirety or at least limit their inclusion to situations where the two jobs are 

similar in character. We reject FedEx’s position for several reasons. 

{¶ 11} First, there is no statutory basis for excluding concurrent wages. 

R.C. 4123.61 refers to wages earned in the year prior to injury without 

qualification or exclusion. 

{¶ 12} Second, contrary to FedEx’s representation, relevant case law does 

not limit the inclusion of concurrent wages to jobs involving “similar” 

employment. FedEx’s reliance on the 1933 decision in State ex rel. Smith v. 

Indus. Comm. (1933), 127 Ohio St. 217, 187 N.E.768, is misplaced. Smith 
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involved a predecessor version of R.C. 4123.61 that differed significantly from 

the current statute. G.C. 1465-84 provided no definition for the term “average 

weekly wage.” 103 Ohio Laws 87. R.C. 4123.61, however, specifically states 

that the AWW includes wages for the year preceding injury without qualification 

or exclusion. Given this statutory change, Smith is not relevant to the case at bar. 

{¶ 13} FedEx’s argument also fails from a practical standpoint. FedEx 

decries as inequitable the inclusion of wages from Roper’s second job because 

those wages were significantly higher than his wages at FedEx. Similar jobs, 

however, can also have very disparate earnings. Limiting wages to jobs that are 

similar in character does not eliminate the potential wage differential to which 

FedEx objects. 

{¶ 14} Third, we are not persuaded by FedEx’s assertion that inclusion of 

concurrent wages discourages employment. FedEx believes that combining 

concurrent wages could produce an AWW – and with it a weekly amount of 

temporary total disability compensation – that is high enough to discourage 

injured employees from continuing to work at the second job even if they are 

medically able. This proposition, however, ignores the fact that R.C. 4123.56(A) 

expressly prohibits temporary total disability compensation payments “when work 

within the physical capabilities of the employee is made available by the 

employer or another employer.” Accordingly, a claimant who is still physically 

capable of working the second job but chooses not to cannot receive temporary 

total disability compensation. 

{¶ 15} Finally, inclusion of concurrent wages is not inherently unfair. 

FedEx argues that it is unfair to require it to pay temporary total disability 

compensation benefits that, based on combined wages, exceed Roper’s wages at 

FedEx. This assertion fails for two reasons. 

{¶ 16} First, if a claimant is so severely hurt at one job as to disable him 

or her from both, it is not unfair to compensate the claimant for that cumulative 
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loss. Second, the inclusion of two sets of wages was not considered unfair by the 

General Assembly when it promulgated R.C. 4123.61. Again, under R.C. 

4123.61, income from a previous job must be included in an AWW computation 

if the employment occurred during the relevant 52-week period. FedEx does not 

persuasively explain why concurrent wages should be treated differently from 

consecutive ones. 

{¶ 17} We accordingly find that the commission did not abuse its 

discretion in including earnings from both FedEx and Integrated Pest Control in 

establishing Roper’s AWW. 

{¶ 18} FedEx also challenges the amount of Roper’s FWW. The Revised 

Code does not define “full weekly wage” for workers’ compensation purposes, 

and this silence has been construed as affording the commission discretion in 

setting the FWW. State ex rel. Taylor v. Indus. Comm., Franklin App. No. 05AP803, 2006-Ohio-4781, ¶ 14. Consistent with this discretion, the commission and 

bureau in 1980 issued Joint Resolution No. R80-7-48: 

{¶ 19} “WHEREAS confusion and uncertainty [have] arisen regarding the 

computation of the full weekly wage of injured employees under Ohio Revised 

code section 4123.61, and 

{¶ 20} “WHEREAS the Industrial Commission and [B]ureau of Workers’ 

Compensation seek to achieve uniformity of treatment between state-fund and 

self-insuring employers; 

{¶ 21} “THEREFORE BE IT RESOLVED, that the full weekly wage 

shall be computed in the following manner: 

{¶ 22} “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: 
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{¶ 23} “a) The gross wages (including overtime pay) earned over the 

aforementioned six week period divided by six, or 

{¶ 24} “b) The employee’s gross wages earned for the seven days prior to 

the date of injury (excluding overtime pay).” 

{¶ 25} The staff hearing officer used the first formula to set Roper’s 

FWW. FedEx challenges the commission’s reliance on R80-7-48, alleging that it 

was superseded in 1993 by Am.Sub.H.B. No. 107. 145 Ohio Laws, Part II, 2990. 

This argument, however, was correctly rejected in Taylor, which emphasized that 

the only change that Am.Sub.H.B. No. 107 made to R.C. 4123.61 was the 

substitution of the bureau for the commission. The balance of the statute 

remained intact, prompting this conclusion: 

{¶ 26} “[I]n former R.C. 4123.61, as amended by (1993) Am.Sub.H.B. 

No. 107, the agency responsible for determining FWW was changed, and 

consequently, as applied to the commission, Joint Resolution No. R80-7-48 was 

superseded to a limited extent. However, we find nothing in (1993) Am.Sub.H.B. 

No. 107 that abrogates the computation of FWW as contained in Joint Resolution 

No. R80-7-48. We also cannot conclude that the commission’s recognition that 

Joint Resolution No. R80-7-48 was superseded to a limited extent, as applied to 

the commission, altered the formula for determining FWW. Furthermore, the 

commission’s recognition that the joint resolution was superseded to a limited 

extent did not necessarily prohibit the commission from relying, in part, upon 

Joint Resolution No. R80-7-48 when it exercised its discretion in determining 

relator’s FWW.” Taylor, 2006-Ohio-4781, ¶ 14. 

{¶ 27} We have consistently recognized and generally deferred to the 

commission’s expertise in areas falling under the agency’s jurisdiction. State ex 

rel. Hina v. Indus. Comm., 121 Ohio St.3d 4, 2009-Ohio-250, 901 N.E.2d 221, ¶ 

19. We therefore defer to the commission’s FWW calculation and find that no 

abuse of discretion occurred. 
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{¶ 28} The judgment of the court of appeals is affirmed. 

Judgment affirmed. 

 PFEIFER, LUNDBERG STRATTON, O’CONNOR, O’DONNELL, and CUPP, JJ., 

concur. 

 BROWN, C.J., and LANZINGER, J., not participating. 

__________________ 

Eastman & Smith, Ltd., John T. Landwehr, Nicole A. Flynn, and Mark A. 

Shaw, for appellant. 

Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., and Theodore A. 

Bowman, for appellee Christopher Roper. 

Richard Cordray, Attorney General, and Gerald H. Waterman, Assistant 

Attorney General, for appellee Industrial Commission. 

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