[Cite as State ex rel. Matheny v. Indus. Comm., 2022-Ohio-1824.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Richard K. Matheny, : 

Relator, :

v. : No. 19AP-871

Industrial Commission of Ohio et al., : (REGULAR CALENDAR)

 

Respondents. :

D E C I S I O N

Rendered on May 31, 2022

On brief: Shapiro, Marnecheck & Palnik, Mathew Palnik,

and Elizabeth Laporte, for relator.

On brief: Dave Yost, Attorney General, and John Smart, for 

respondent Industrial Commission of Ohio.

IN MANDAMUS

ON OBJECTION TO THE MAGISTRATE'S DECISION 

JAMISON, J.

{¶ 1} Relator, Richard K. Matheny, has filed this original action requesting this 

court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio 

("commission"), to vacate its order that denied his motion requesting that his average 

weekly wage ("AWW") be set at $1,545.10, and to enter an order adjusting all prior 

compensation.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 20, 2018, relator requested that his AWW be adjusted to include his 

hourly compensation of $36.78, plus health and welfare benefits at a rate of $8.80 per hour,

pension benefits at a rate of $10.05, National Electrical Benefit Fund pension benefits at a 

rate of $1.10 per hour, and National Electrical Industry Fund pension benefits at a rate of 

$.11 per hour. Relator requested his AWW be adjusted upward from $999.80 to $1,545.10. 
No. 19AP-871 2

{¶ 3} On May 30, 2018, a district hearing officer ("DHO"), denied relator's request 

finding that such benefits are not wages for the purposes of calculating AWW pursuant to 

R.C. 4123.61. Relator appealed this decision to a staff hearing officer ("SHO"), who held a 

hearing on July 5, 2018. Ultimately, on July 11, 2018, the SHO affirmed the DHO's order 

again finding that the additional benefits are not wages for purposes of calculating AWW. 

On August 1, 2018, the commission refused further appeal in the matter. On December 23,

2019, relator filed a complaint for writ of mandamus. 

{¶ 4} This matter was referred to a magistrate pursuant to Civ.R. 53 and Loc.R. 

13(M) of the Tenth District Court of Appeals. The magistrate issued the appended decision,

including findings of fact and conclusions of law, and recommended this court deny

relator's request for a writ of mandamus. The magistrate concluded that the commission 

did not abuse its discretion when it entered an order finding that the "additional benefits 

cited by claimant are not wages for purposes of calculating AWW pursuant to R.C. 4123.61 

and, therefore, are not included in the calculation of the AWW; claimant's AWW shall 

remain at $999.80, which was set based on claimant's gross earnings in the year prior to 

the injury, divided by 52, per the AWW [Bureau of Workers' Compensation ("BWC")]

calculation worksheet and claimant's wage records." (Appended Mag.'s Decision at ¶ 35.)

Accordingly, the magistrate recommended that we deny the requested writ of mandamus. 

Relator timely filed an objection to the magistrate's decision.

II. OBJECTION

{¶ 5} Relator filed the following objection to the magistrate's decision:

The Magistrate erred by failing to address the legal question of 

whether the compensation paid to Relator pursuant to his 

Union Contract with Respondent-Employer are wages 

pursuant to R.C. 4123.56. 

III. DISCUSSION

{¶ 6} "Mandamus is an extraordinary writ that must be granted with caution."

State ex rel. Liberty Mills, Inc. v. Locker, 22 Ohio St.3d 102, 103 (1986). To obtain a writ of 

mandamus, a relator must demonstrate:(1) that he or she has a clear legal right to the relief 

requested; (2) that the respondent has a clear legal duty to grant the relief requested; and 

(3) that he or she has no adequate remedy in the ordinary course of law. State ex rel. Berger 

v. McMonagle, 6 Ohio St.3d 28 (1983). "It is axiomatic that in mandamus, the legal duty 
No. 19AP-871 3

must be the creation of the legislative branch, and courts are not authorized to create the 

legal duty enforceable in mandamus." State ex rel. Byrd v. Ross, 10th Dist. No. 03AP-478,

2004-Ohio-2642, ¶ 14. The right to mandamus must be shown by clear and convincing 

evidence, and a writ will not be granted in doubtful cases. State ex rel. Goldsberry v. Weir,

60 Ohio App.2d 149, 153 (10th Dist.1978). State ex rel. NHVS Internatl., Inc. v. Ohio Bur.

of Workers' Comp., 10th Dist. No. 13AP-356, 2014-Ohio-5522, ¶ 6.

{¶ 7} Relator brings this action solely to determine whether his hourly health and 

welfare benefits and pension earnings are considered wages and therefore should be 

included in his AWW. Relator's theory has been rejected. 

{¶ 8} Based upon Ohio Workers' Compensation law, benefits payable to claimants 

are calculated based upon AWW. R.C. 4123.61 states in pertinent part, "[t]he 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." The 

"standard formula for establishing [AWW] is to divide claimant's wages for the year 

preceding injury by fifty-two weeks." State ex rel. Clark v. Indus. Comm., 69 Ohio St.3d 

563, 565 (1994). This court held that the AWW 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. Mattscheck v. Indus. Comm., 10th Dist. No. 12AP-255,

2013-Ohio-285, ¶ 7, citing State ex rel. Erkard v. Indus. Comm., 55 Ohio App.3d 186 (10th 

Dist.1988). The AWW "must do substantial justice to the claimant" and "should not 

provide a windfall." State ex rel. Valley Pontiac Co. v. Indus. Comm., 71 Ohio App.3d 388,

393 (10th Dist.1991). 

{¶ 9} The revised code does not define wages or earnings to be used in the 

calculation of AWW, but the Ohio Supreme Court has adopted the Webster's dictionary 

definition and "defines 'earnings' as 'wages * * * earned as compensation for labor' " and 

wages as "remuneration by an employer * * * for labor or services." State ex rel. McDulin 

v. Indus. Comm., 89 Ohio St.3d 390, 392 (2000). "Income is a much broader term than 

'earnings' or 'wages,' and cannot, therefore, be used interchangeably." Id. "[D]ividends,

interest, and other forms of income unrelated to a claimant's job performance" are not to 

be used in the calculation of AWW. Id. This court defines wages as "monetary 
No. 19AP-871 4

remuneration by an employer for labor or services." State ex rel. Cassese v. Ford Motor 

Co., 10th Dist. No. 05AP-165, 2005-Ohio-6752, ¶ 36. 

{¶ 10} Relator's specific question is whether an employer's contributions to 

additional benefits should be calculated as wages and included in AWW. The United States 

Supreme Court delved into what we commonly refer to as fringe benefits in MorrisonKnudsen Constr. Co. v. Dir., Office of Workers' Comp. Program, 461 U.S. 624 (1983). In 

this case, the court held that an employer's contributions to a union trust fund for health 

and welfare, pensions, and employee training were not considered wages for the purposes 

of calculating weekly benefits under the District of Columbia's Workers' Compensation 

Act. In so deciding, the United States Supreme Court relied on the fact that the health and 

welfare, pension, and training funds could not be readily converted to a cash equivalent in 

the same way as regular wages or the reasonable value of lodging. The court also noted that 

the legislative history indicated that Congress did not intend to include these types of fringe 

benefits when calculating the rate of compensation benefits. This case is instructive in 

determining whether states should consider fringe benefits as income for the purpose of 

calculating AWW.

{¶ 11} The majority trend is to treat an employer's matching contribution to a 

pension plan as a welfare benefit that falls under the category of "fringe benefits," and thus 

is not included in the calculation of weekly benefits for workers' compensation purposes. 8 

Arthur Larson, Larson's Workers' Compensation Law 93.01[2][b], at 93 (Rev.Ed.2015);

see also Lamar v. Koehn, 968 P.2d 164, 167 (Colo.App.1998) (excluding an employer's 

contribution to an employee's pension plan from the calculation of weekly benefits); Luce 

v. United Technologies Corp., Pratt & Whitney Aircraft Div., 247 Conn. 126 (1998)(finding 

that the calculation of "wages" under the state's workers' compensation laws does not 

include pensions); Rainey v. Mills, 733 S.W.2d 756, 758 (1987) (declining to find statutory 

support to include fringe benefits, such as employer pension plan contributions, in weekly 

wage calculation); Barnett v. Sara Lee Corp., 627 A.2d 86, 90-91 (1993) (finding that 

pension plans could not be considered in the calculation of weekly wages for the purpose of 

determining a claimant's industrial loss of use); In re Gagnon, 965 A.2d 1154, 1159 

(N.H.2009) (holding that weekly wages are calculated using a claimant's pre-tax pay and,

therefore, it was not unjust for the collective bargaining agreement to exclude employer 
No. 19AP-871 5

payments to an employee's pension plan from the definition of wage); Shaw v. U.S. 

Airways, Inc., 665 S.E.2d 449, 453 (N.C.2008) (holding that an employer's contributions 

to an employee's retirement account are not included in the calculation of a weekly wage 

for workers' compensation purposes); Clopton v. Muskogee, 147 P.3d 282, 284-85

(Okla.Civ.App.2006) (relying on Morrison-Knudsen in determining that pension plans are 

not included in the definition of wage for workers' compensation purposes); Nelson v. SAIF 

Corp., 714 P.2d 631, 631-32 (Oregon 1986) (finding that pensions are not included in the 

definition of wages included in Oregon's workers' compensation laws). In the above cases,

AWW has not included those benefits that are not direct compensation for labor.

{¶ 12} The commission has discretion to include the market value of fringe benefits 

in the calculation of AWW where special circumstances exist. R.C. 4123.61. The workers'

compensation administrator, when special circumstances prevent the AWW from being 

justly determined, "shall use such method as will enable the administrator to do substantial 

justice to the claimants." R.C. 4123.61. This court rejected the inclusion of fringe benefits 

in AWW. In Studer, relator argued that fringe benefits, such as the market value of

employer provided medical insurance, were special circumstances that should be

included in his AWW, but the court held that the medical benefits were not ordinarily

calculated in AWW. State ex rel. Studer v. Indus. Comm., 10th Dist. No. 87AP-985

(Sept. 27, 1988).

{¶ 13} Relator further argues that the magistrate is silent as to this court's holding 

in House v. Indus. Comm., 42 Ohio App.3d 29 (10th Dist.1987), which held that R.C. 

4123.61 allows the commission to include remuneration types which are not specifically 

identified in the statute in its calculation of AWW. Relator argues that the holding in House 

requires this court to vacate the magistrate's decision and issue an opinion that would order 

BWC to include his performance-related pension contribution wages, as well as his health 

and wellness benefits, and set relator's AWW at $1,545.10. (Relator's Obj. to the Mag.'s

Decision at 12.) I disagree.

{¶ 14} In House, the court was asked (1) whether the commission abused its 

discretion when it adopted former Ohio Adm.Code 4121-7-14 to include the value of lodging 

provided to employees for the purposes of calculating workers' compensation premiums,

and (2) to define whether remuneration such as the reasonable value of lodging provided 
No. 19AP-871 6

to employees by their employer is wages. House is distinguishable from the present case. 

Relator's reliance on House and former Ohio Adm.Code 4121-7-14 is misplaced in this case 

because the former code specifically named lodging as a supplement to wages for the 

purposes of calculating AWW to establish workers' compensation premiums. Relator is 

seeking inclusion of benefits for the purposes of calculating AWW to establish workers'

compensation benefits. Reliance on House leads relator down a road in a code section that 

is no longer applicable or a part of Ohio Adm.Code 4121-7-14.

{¶ 15} The commission has the discretion under R.C. 4123.61 to include additional 

employer provided benefits as wages in the calculation of AWW, but it is not required to 

include the benefits offered by relator. State ex rel. Gunter v. Indus. Comm., 10th Dist. No. 

15AP-562, 2017-Ohio-1571. Relator's request must be rejected as Studer held that the 

commission has discretion to find that fringe benefits such as medical insurance are not 

normally included in the calculation of AWW. 

{¶ 16} The concurring opinion finds that the issue of determining what is included 

in AWW is settled. This forecloses the discretion of the commission. Defining AWW rests 

in the sole discretion of the commission and other forms of wages may be included in the 

future calculation at their discretion. In this case, the commission did not have a clear legal 

duty to include the benefits in the calculation of AWW, and relator's claims must fail. 

However, if the commission at some time in the future adopts this form of compensation 

in the calculation of wages, the commission has discretion to make that finding.

IV. CONCLUSION

{¶ 17} On examination of the magistrate's decision, an independent review of the 

record pursuant to Civ.R. 53, and consideration of relator's objection, we find the 

magistrate has properly determined the facts and correctly applied the relevant law. 

Accordingly, we adopt the magistrate's decision as our own, as supplemented in the lead 

and separate concurring opinion, overrule relator's objection, and deny the requested a writ 

of mandamus.

Objection overruled;

writ of mandamus denied.

DORRIAN, J., concurs in judgment only.

BEATTY BLUNT, J., concurs in judgment only.
No. 19AP-871 7

DORRIAN, J., concurring in judgment only.

{¶ 18} I concur with the lead opinion's resolution of the case, but respectfully write 

separately because I believe that applicable Ohio law resolves the issue in the present case.

{¶ 19} The issue in the present mandamus action is whether the commission abused 

its discretion by failing to include the value of relator's health and pension benefits in the 

average weekly wage ("AWW") calculation. "The average weekly wage of an injured 

employee at the time of injury * * * is the basis upon which to compute benefits." R.C. 

4123.61. The standard formula for calculating the AWW "is to divide [relator's] earnings for 

the year preceding the injury by fifty-two weeks." State ex rel. Clark v. Indus. Comm., 69 

Ohio St.3d 563, 565 (1994). 

{¶ 20} Relator contends the magistrate erred by refusing to adopt the definition of 

"remuneration" from R.C. 4141.01(H)(1) to define "wages" for the AWW calculation. 

Relator notes the legislature incorporated the R.C. 4141.01(H)(1) definition of 

remuneration into R.C. 4123.56. R.C. 4123.56, however, states that "[a]s used in this 

division, 'net take-home weekly wage' means the amount obtained by dividing an 

employee's total remuneration, as defined in [R.C.] 4141.01" by a certain denominator. R.C. 

4123.56(A). An employee's "average weekly wage" differs from an employee's "net takehome weekly wage." See R.C. 4123.56(A). Neither R.C. 4123.56 nor 4123.61 define "wages" 

for purposes of the AWW calculation by reference to the definition of "remuneration" in 

R.C. 4141.01(H)(1). The magistrate properly determined the commission was not bound to 

use definitions from R.C. Chapter 4141, the chapter regulating unemployment 

compensation, to calculate the AWW. 

{¶ 21} Although R.C. Chapter 4123 does not define what constitutes "wages" for the 

AWW calculation, in State ex rel. McDulin v. Indus. Comm., 89 Ohio St.3d 390 (2000), the 

court defined " 'earnings' as 'wages * * * earned as compensation for labor,' " and "wages" 

as " 'monetary remuneration by an employer * * * for labor or services.' " Id. at 392, quoting 

Webster's Third New International Dictionary 714, 2568 (1986). The claimant in McDulin

asserted that the commission abused its discretion by refusing to include reimbursement 

payments the claimant received for lodging, meals, and tool and trucking expenses, which 

the claimant's employer reported as "miscellaneous income" on federal tax form 1099, in 

the claimant's AWW. Id. at 392. The court concluded the commission had not abused its 
No. 19AP-871 8

discretion, as there was "nothing in [R.C. 4123.61 that] demand[ed] or authorize[d]" 

inclusion of the reimbursement payments in the AWW calculation. Id. The court noted 

that R.C. 4123.61 "explicitly refer[ed] to average weekly wage, not average weekly income," 

and thus held that "income" could not be substituted for the term "wage" in the statute. 

(Emphasis sic.) Id. Although the court acknowledged that "in some situations, lodging, 

meals, etc. [could] be part of the wage package," the claimant in McDulin failed to establish 

that the reimbursement payments were "gainful remuneration rather than simple 

reimbursement for expenses incurred by claimant." Id. at 392.

{¶ 22} Since McDulin, this court has defined "wages" for purposes of the AWW 

calculation as "monetary remuneration by an employer for labor or services." State ex rel. 

Cassese v. Ford Motor Co., 10th Dist. No. 05AP-165, 2005-Ohio-6752, ¶ 30. Accord State 

ex rel. Hord v. Combs, 10th Dist. No. 04AP-617, 2005-Ohio-1532, ¶ 14 (stating that "the 

use of the word 'wage' in R.C. 4123.61 constitutes monetary remuneration by an employer 

for labor or services"); State ex rel. Yester v. Indus. Comm., 10th Dist. No. 06AP-866, 2007-

Ohio-2525, ¶ 5 (same). See also State ex rel. Warner v. Indus. Comm., 131 Ohio St.3d 366, 

2012-Ohio-1084, ¶ 16 (observing that whether income is "federally taxable income" is 

"irrelevant in determining what to include in the AWW wage total").

{¶ 23} Relator contends that, pursuant to McDulin, the value of his fringe benefits 

should be included in the AWW calculation because the amount his employer contributes 

to the benefits is based on each hour worked by relator. In McDulin, the court cautioned 

against including all forms of "income" in the AWW calculation, because doing so "would 

permit the inclusion into the AWW calculation of dividends, interest, and other forms of 

income unrelated to claimant's job performance," which was "clearly not what the General 

Assembly had in mind." Id. at 392. Thus, while McDulin explained that income wholly 

unrelated to job performance should not be included in the AWW calculation, McDulin 

does not appear to hold, as relator appears to contend, that every employment benefit 

measured by hour worked would qualify as "wages" for purposes of AWW.

{¶ 24} Moreover, in State ex rel. Studer v. Indus. Comm., 10th Dist. No. 87AP-985 

(Sept. 27, 1988), this court specifically addressed whether an employer's contributions to 

an employee's health benefits should be included in the claimant's wages for purposes of 

the AWW calculation. We held that the "market value of medical insurance supplied by the 
No. 19AP-871 9

employer are not benefits that are ordinarily calculated to be added to the average weekly 

wage of an employee * * * by R.C. 4123.61." Id. In Studer we stated that, if health benefits 

were to be included in the AWW calculation, "it should be by legislative enactment stating 

a definition of weekly wage that would include this type of benefit." Id.

{¶ 25} Since its original enactment in 1959, R.C. 4123.61 was amended, without 

substantive change, in 1993 and 2006. Thus, following this court's decision in Studer and 

the Supreme Court of Ohio's decision in McDulin, the General Assembly re-enacted R.C. 

4123.61 without providing a more comprehensive definition for the term "wage" in the 

statute. 

{¶ 26} The lead opinion notes several federal and out-of-state cases which address 

whether fringe benefits may be included in the AWW calculation. However, as these cases 

do not address R.C. 4123.61, I would not find them relevant to the resolution of the present 

issue. The statute applicable in each jurisdiction will necessarily determine what constitutes 

"wages" under that jurisdiction's AWW calculation.1

{¶ 27} There is nothing in R.C. 4123.61 which would require the commission to 

include employer contributions to fringe benefits in the AWW calculation. As such, relator 

cannot establish that the commission had a clear legal duty to include the value of his health 

1 For instances, in Morrison-Knudsen Constr. Co. v. Dir., Office of Workers' Comp. Programs, 461 U.S. 

624, 637 (1983), the United States Supreme Court addressed whether employer contributions to union trust 

funds for health and pension benefits constituted "wages" under the Longshoremen's and Harbor Workers' 

Compensation Act. The relevant provision of the Act defined "wages" as " 'the money rate at which the 

service rendered is recompensed under the contract of hiring in force at the time of the injury, including 

the reasonable value of board, rent, housing, lodging, or similar advantage received from the employer.' " 

Id. at 629, quoting (prior version) 33 U.S.C. 902(13). The court concluded that employer contributions to 

fringe benefits were not "wages," as the benefits were not "similar advantage[s]" to board, rent, housing or 

lodging. Id. at 630. Notably, in 1984, Congress amended the definition of "wages" in the Act to specifically 

exclude "fringe benefits, including (but not limited to) employer payments for or contributions to a 

retirement, pension, health and welfare," from the definition of "wages" in the Act. 33 U.S.C. 902(13). See 

Universal Maritime Serv. Corp. v. Wright, 155 F.3d 311, 319, 321-23 (4th Cir.1998). 

In Lamar v. Koehn, 968 P.2d 164 (Colo.App.1998), the applicable statute defined "wages" under Colorado's 

Workers' Compensation Act as including "board, rent, housing and lodging, specifically added gratuities, 

and certain costs of continuing or converting health insurance," but as excluding " 'any similar advantage 

or fringe benefit not specifically enumerated.' " Id. at 166, quoting Colo. Sess. Laws 1989 ch. 67, 8-47-101(2) 

at 411. See Colo.Rev.Stat. 8-4-201(19)(b). As such, the court in Lamar concluded that employer 

contributions to the claimant's pension benefits could not be included in the AWW calculation. Compare 

McCarty's Case, 445 Mass. 361, 368, 363 (Mass.2005), quoting Massachusetts General Laws c. 149 Section 

26 (holding that "the inclusion of fringe benefits in the determination of average weekly wages for a 

unionized employee * * * [was] required under the plain language" of the applicable statute, which provided 

that payments " 'by employers to health and welfare plans, pension plans and supplementary 

unemployment benefit plans under collective bargaining agreements or understandings between organized 

labor and employers shall be included' " in Massachusetts' AWW calculation (Emphasis sic.)).
No. 19AP-871 10

and pension benefits in his AWW. See State ex rel. Pipoly v. State Teachers Retirement

Sys., 95 Ohio St.3d 327, 2002-Ohio-2219, ¶ 18, citing State ex rel. Woods v. Oak Hill 

Community Med. Ctr., Inc., 91 Ohio St.3d 459, 461 (2001) (providing that in mandamus 

proceedings "the creation of the legal duty that a relator seeks to enforce is the distinct 

function of the legislative branch of government, and courts are not authorized to create 

the legal duty enforceable in mandamus" (Emphasis sic.)). If employer contributions to 

fringe benefits are to be included in the AWW calculation, the General Assembly should 

define the term "wage" in R.C. 4123.61 to specifically include such benefits. 

{¶ 28} Finally, I address the lead opinion's discussion of House v. Indus. Comm., 42 

Ohio App.3d 29 (10th Dist.1987). In House, this court concluded that the commission did 

not abuse its discretion by promulgating former Ohio Adm.Code 4121-7-14(C), which 

provided that "the 'reasonable value of board, lodging, house or room rent' allowed by an 

employer to its employees shall be included in the employer's payroll for purposes of 

calculating the employer's rate of contribution to the State Insurance Fund." House at 

syllabus. Based on former Ohio Adm.Code 4121-7-14(C), we determined the commission 

had properly increased an employer's workers' compensation premium based on the 

reasonable value of employer provided lodging. The commission explained in the case that 

"it include[d] housing given by an employer to an employee in the benefit calculation of the 

average weekly wage of an injured employee," and we found that R.C. 4123.61 "allow[ed] 

the commission to include * * * the reasonable value of employee lodging given by an 

employer" in the AWW. Id. at 33-34. We noted that the commission's representation 

regarding including employer provided lodging in the AWW calculation supported the rule 

in former Ohio Adm.Code 4121-7-14(C), as workers' compensation "premiums should be 

collected on the same basis as that used for claims paid." Id. at 34.

{¶ 29} The lead opinion states House "held that R.C. 4123.61 allows the commission 

to include remuneration types which are not specifically identified in the statute in its 

calculation of AWW." (Lead Opinion at ¶ 13.) However, R.C. 4123.61 does not address 

workers' compensation premiums; R.C. 4123.61 addresses solely the AWW. Moreover, the 

present case does not present an issue regarding workers' compensation premiums. The 

lead opinion also states that House is distinguishable from the present case and reliance on 

House and former Ohio Adm.Code 4121-7-14 is misplaced "because the former code 
No. 19AP-871 11

specifically named lodging as a supplement to wages for the purposes of calculating AWW 

to establish workers' compensation premiums." (Lead Opinion at ¶ 14.) However, there is 

no statute or code provision which identifies what comprises "wages" for purposes of the 

AWW calculation. I agree that House is distinguishable from the present case, but find so 

because the case primarily concerned the calculation of workers' compensation premiums, 

not the AWW.

{¶ 30} Based on the foregoing, I concur with the lead opinion's decision to overrule 

relator's objection, adopt the magistrate's decision, and deny the requested writ of 

mandamus, but for the reasons stated in this opinion.
No. 19AP-871 12

A P P E N D I X

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State ex rel. Richard K. Matheny, : 

Relator, :

v. : No. 19AP-871

Industrial Commission of Ohio et al., : (REGULAR CALENDAR)

 

Respondents. :

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

Rendered on April 28, 2021

Shapiro, Marnecheck & Palnik, Mathew Palnik, and 

Elizabeth Laporte, for relator. 

Dave Yost, Attorney General, and John Smart, for respondent 

Industrial Commission of Ohio.

IN MANDAMUS 

{¶ 31} Relator, Richard K. Matheny ("claimant"), has filed this original action 

requesting this court issue a writ of mandamus ordering respondent Industrial 

Commission of Ohio ("commission") to vacate its order that denied his motion requesting 

that his average weekly wage ("AWW") be set at $1,545.10, and to enter an order adjusting 

all prior compensation. 

Findings of Fact:

{¶ 32} 1. Claimant sustained a work-related injury on July 28, 2014, through his 

employment with Contemporary Electric,Inc. ("employer"), respondent, and his workers'

compensation claim was allowed for the following conditions: sprain of the right knee,
No. 19AP-871 13

substantial aggravation of pre-existing tricompartmental degenerative joint disease of the 

right knee, and substantial aggravation of pre-existing chondromalacia of the right knee.

{¶ 33} 2. On September 18, 2014, the Ohio Bureau of Workers' Compensation 

("BWC") issued an order setting claimant's AWW at $999.80, based upon an hourly rate 

of $36.78 per hour. 

{¶ 34} 3. On April 20, 2018, claimant filed a motion requesting his AWW be set at 

$1,545.10, and that all prior compensation be adjusted. Claimant asserted that his "total 

remuneration," as that term is used in R.C. 4123.56, should include his health and welfare

benefits ($8.80/hour); pension benefits ($10.05/hour); National Electrical Benefit Fund 

("NEBF") pension benefits (3% of gross income, or $1.10/hour), and National Electrical 

Industry Fund ("NEIF") pension benefits (3% of gross income, or $.11/hour). Thus,

claimant claimed that his total remuneration from his employer was $56.84/hour, and 

his AWW should be set at $1,545.10.

{¶ 35} 4. On May 24, 2018, a district hearing officer ("DHO") held a hearing on 

claimant's motion. At the hearing, claimant modified the AWW amount he was claiming 

to $1,527.43. On May 30, 2018, the DHO issued a decision in which she denied the 

motion, finding the following: the additional benefits cited by claimant are not wages for 

purposes of calculating AWW pursuant to R.C. 4123.61 and, therefore, are not included 

in the calculation of the AWW; claimant's AWW shall remain at $999.80, which was set 

based on claimant's gross earnings in the year prior to the injury, divided by 52, per the 

AWW BWC calculation worksheet and claimant's wage records. Claimant appealed the 

decision.

{¶ 36} 5. On July 5, 2018, a staff hearing officer ("SHO"), held a hearing on 

claimant's appeal. On July 11, 2018, the SHO issued a decision in which he affirmed the 

DHO's order, finding the following: the additional benefits cited by claimant are not 

wages for purposes of calculating AWW, as set forth in R.C. 4123.61 and, therefore, are 

not permitted to be included in the calculation of claimant's AWW. Claimant appealed.

{¶ 37} 6. On August 1, 2018, the commission refused further appeal of the matter.

{¶ 38} 7. On December 23, 2019, claimant filed a complaint for writ of mandamus.

Conclusions of Law and Discussion:
No. 19AP-871 14

{¶ 39} For the reasons that follow, it is this magistrate's decision that this court 

should deny claimant's request for a writ of mandamus.

{¶ 40} In order for this court to issue a writ of mandamus, a relator must establish 

the following three requirements: (1) that relator has a clear legal right to the relief sought; 

(2) that respondent has a clear legal duty to provide such relief; and (3) that relator has 

no adequate remedy in the ordinary course of the law. State ex rel. Pressley v. Indus. 

Comm., 11 Ohio St.2d 141 (1967).

{¶ 41} A clear legal right to a writ of mandamus exists where the relator shows that 

the commission abused its discretion by entering an order that is not supported by any 

evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). On 

the other hand, 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). Furthermore, questions 

of credibility and the weight to be given evidence are clearly within the discretion of the 

commission as fact finder. State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).

{¶ 42} Pursuant to Ohio workers' compensation law, benefits payable to claimants 

are calculated based upon a figure known as the AWW. R.C. 4123.61 provides, in pertinent 

part, "[t]he 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." The AWW 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. Mattscheck v. Indus. Comm., 10th Dist. No. 12AP-255, 2013-Ohio-285, ¶ 7, citing 

State ex rel. Erkard v. Indus. Comm., 55 Ohio App.3d 186 (10th Dist.1988). AWW is 

generally calculated by dividing the injured worker's wages for the year preceding the date 

of injury by 52 weeks. State ex rel. Clark v. Indus. Comm., 69 Ohio St.3d 563, 565 (1994). 

However, R.C. 4123.61 provides 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." The AWW must do the claimant "substantial justice" without providing a 

windfall. State ex rel. FedEx Ground Package Sys. v. Indus. Comm., 126 Ohio St.3d 37,
No. 19AP-871 15

2010-Ohio-2451, ¶ 7, citing State ex rel. Logan v. Indus. Comm., 72 Ohio St.3d 599, 600 

(1995). The "special circumstances" provision in R.C. 4123.61 has "generally been 

confined to uncommon situations." State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 

286, 288 (1990). Thus, R.C. 4123.61 provides a standard AWW computation that is to be 

used in all but the most exceptional cases. State ex rel. Gollihue v. Bur. of Workers'

Comp., 10th Dist. No. 05AP-924, 2006-Ohio-3910, ¶ 45, citing State ex rel. Cawthorn v. 

Indus. Comm., 78 Ohio St.3d 112, 114 (1997). 

{¶ 43} In the present case, claimant argues that his compensation was $56.84 per 

hour, but the BWC calculated his AWW based upon his hourly rate of $36.78 per hour. 

Claimant cites Ohio BWC Policy #CP-23-01(IV)(C) for the proposition that, in calculating 

wages, the BWC shall include gross regular earnings, before deductions such as deferred 

compensation, and payment received in lieu of receiving health insurance. Claimant also 

cites R.C. 4141.01(H)(1), which defines "remuneration" as "all compensation for personal 

services, including commissions and bonuses and the cash value of all compensation in 

any medium other than cash." Furthermore, claimant asserts that R.C. 4141.01(H)(1) 

explicitly states that payments and benefits cited in 26 U.S.C. 3306(b)(2) to (20) are 

excluded from the definition of "remuneration," and none of the claimed benefits here fall 

within those exclusions. 

{¶ 44} Claimant makes specific arguments with regard to each type of benefit he 

claims should be included in his total remuneration. With regard to his pension 

contribution earnings, claimant asserts his hourly pension contributions should be 

included in his AWW, pursuant to R.C. 4141.01(H)(1), as they are a set hourly amount 

that he earns per hour worked, which is then paid into his pension fund. With regard to 

his health and welfare earnings, claimant contends that his compensation includes hourly 

health and welfare benefits that are paid into the union Health Reimbursement 

Arrangement, which is used to reimburse union employees for out-of-pocket medical 

expenses and personal health insurance premiums. Claimant argues that reimbursement 

arrangements are flexible spending accounts not specifically excluded from the definition 

of remuneration in 26 U.S.C. 3306(b), and R.C. 4141.01(H) does not exclude flexible 

spending arrangements from the definition of remuneration. Finally, claimant contends 

his AWW should include all of his performance-related wages, as he earns both his 
No. 19AP-871 16

pension benefits and health and welfare benefits for each hour worked, and they are tied 

to his job performance, which is consistent with the Supreme Court of Ohio's holding in 

State ex rel. McDulin v. Indus. Comm., 89 Ohio St.3d 390 (2000), that AWW includes 

income tied to job performance. 

{¶ 45} Claimant's arguments can be broken down into three general contentions: 

(1) the commission should have followed Ohio BWC Policy #CP-23-01(IV)(C); (2) the 

commission should have followed R.C. 4141.01(H)(1); and (3) the commission should 

have followed McDulin. However, none of these contentions are persuasive. With regard 

to Ohio BWC Policy #CP-23-01(IV)(C), that provision provides:

C. BWC shall include the following earnings in the calculation of 

wages, however the list is not all-inclusive:

1. Gross regular earnings, before deductions such as deferred 

compensation, Cafe 125, etc.;

2. Tips;

3. Self-employment earnings (e.g., Form 1040 Schedule C);

4. Allowances;

5. Bonuses related to direct and active participation in employment 

during the earnings period (e.g., performance bonus);

6. Profit sharing related to work activity (e.g., earned based on hours 

worked, product produced or other earnings related to work 

activity);

7. Working wage loss or living maintenance wage loss paid in a prior 

workers' compensation claim (in addition to earnings from an 

employer);

8. Per diem or stipend payments;

9. Vacation, sick leave, and holiday pay for periods which fall within 

the earnings period;

10. Lump sum payouts for vacation, sick, personal or other leave is 

included for AWW calculation only;

11. Farm income (e.g., Form 1040 Schedule F);
No. 19AP-871 17

12. Earnings reported on the injured worker's federal income tax 

return that are specifically subject to either social security 

withholding, Medicare withholding, or self-employment tax (e.g.,

housing allowance);

13. Income specifically subject to self-employment tax (Schedule 

SE);

14. Payment received in lieu of receiving health insurance.

{¶ 46} Although Ohio BWC Policy #CP-23-01(IV)(C) sets forth a detailed list of 

what earnings the "BWC shall include" in the calculation of wages, the issue before this 

court in mandamus is not whether the Ohio BWC policy contains a better or more 

comprehensive definition of wages than the definition used by the commission. Instead,

the standard of review in mandamus cases is whether the respondent has a clear legal 

duty to provide the relief relator seeks. To do so, the relator must show the commission 

abused its discretion by entering an order not supported by some evidence in the record. 

Claimant cannot sustain such a burden here. The commission is not bound by the BWC's 

policies or guidelines. State ex rel. Honda of Am. Mfg., Inc. v. Indus. Comm., 10th Dist. 

No. 12AP-268, 2013-Ohio-286, ¶ 4, citing State ex rel. Sugardale Foods, Inc. v. Indus. 

Comm., 90 Ohio St.3d 383 (2000) (the commission is not bound by the BWC's policy; the 

question then becomes whether there is some evidence upon which the commission could 

rely to reach its conclusion); State ex rel. Richards v. Indus. Comm., 110 Ohio App.3d 

109, 111-12 (10th Dist.1996) (finding that the BWC's internal guidelines for computation 

of wage loss serve as an advisory function only; they do not have the force of law and do 

not serve as binding or precedential authority for the court); State ex rel. Fairfield City 

Schools v. Indus. Comm., 10th Dist. No. 09AP-271, 2010-Ohio-871, ¶ 10 (the commission 

is not bound to follow BWC internal guidelines; a state agency is not obligated to follow 

the internal guidelines of another). "The commission is the adjudicatory arm of Ohio's 

Workers' Compensation system." Honda of Am. Mfg. at ¶ 7. " 'The bureau gives way to 

the commission when a party contests an award, necessitating a weighing of evidence and 

a judgment. The bureau then makes the payments based upon the commission's 

judgments.' " Id., quoting State ex rel. Crabtree v. Ohio Bur. of Workers' Comp., 71 Ohio 

St.3d 504, 507 (1994). The BWC's duty under R.C. 4121.39(C) is to make payment on 
No. 19AP-871 18

orders of the commission. Id., quoting Crabtree. Thus, the BWC is obligated to follow the 

commission's orders, even if they are contrary to the BWC policies or guidelines. Id.

{¶ 47} Accordingly, here, the commission did not have a clear legal duty to provide 

the relief claimant seeks. The BWC set claimant's AWW at $999.80 using his pay history 

and other employment evidence documenting his prior 52 weeks of gross hourly wages,

excluding from the calculation claimant's unemployment during that period. This is the 

standard formula for AWW provided in R.C. 4123.61. See McDulin, citing State ex rel. 

Clark v. Indus. Comm., 69 Ohio St.3d 563, 565 (1994) (the standard formula for 

establishing the AWW is to divide the claimant's earnings for the year preceding injury by 

52 weeks). The use of the $999.80 figure is substantially justifiable, as it is the average 

amount of income claimant would have received had he continued working after the 

injury. See Mattscheck, supra, citing Erkard ("The AWW should approximate the average 

amount that the claimant would have received had he continued working after the injury 

as he had before the injury."). Although there might have been other benefits yielded if 

claimant had been working during his time of injury, the commission was within its 

discretion not to include those as claimant's wages, as they were not monies claimant 

would have actually received had he continued working. The commission could have 

justly determined that to include such monies would not have accurately reflected his lost 

wages and resulted in a windfall for claimant. See, e.g., State ex rel. Gunter v. Indus. 

Comm., 10th Dist. No. 15AP-562, 2017-Ohio-1571, ¶ 18, citing State ex rel. Zingales v. 

Indus. Comm., 10th Dist. No. 08AP-643, 2009-Ohio-1860, citing McDulin (the 

calculation of AWW should be based on a claimant's net income following deductions 

from gross income; to do otherwise would result in a windfall for the claimant). Therefore,

the commission did not abuse its discretion when it did not utilize Ohio BWC Policy #CP23-01(IV)(C).

{¶ 48} The commission was also not bound by the definition of "remuneration"

provided in R.C. 4141.01(H)(1) in determining what constituted claimant's AWW. 

R.C. 4141.01(H)(1) is found in the chapter of the Ohio Revised Code regulating 

unemployment compensation, and does not concern workers' compensation. Claimant 

can cite no authority, and the magistrate can find none, to support the commission's use 

of R.C. 4141.01(H)(1) and its definition of "remuneration" to determine the wages used 
No. 19AP-871 19

for calculating AWW. Furthermore, R.C. 4141.01, entitled "Definitions," explicitly limits 

its application to those words "[a]s used in this chapter." Again, as similarly discussed 

above with regard to Ohio BWC Policy #CP-23-01(IV)(C), the issue before this court in 

mandamus is not whether R.C. 4141.01 provides a better or more comprehensive 

definition for wages than that used by the commission for calculating AWW, but, rather,

whether the commission had a clear legal duty to provide the requested relief based upon 

the definition provided in R.C. 4141.01(H)(1). However, claimant has failed to show any 

clear duty to provide claimant relief in his workers' compensation case based upon the 

definition contained in Chapter R.C. 4141.01, which pertains solely to unemployment 

compensation. 

{¶ 49} With regard to claimant's reliance upon McDulin, the case has already been 

cited above to support the conclusion that the commission did not abuse its discretion in 

determining claimant's AWW. Claimant argues that McDulin held that monies tied to job 

performance must be included in calculating AWW; thus, because his pension benefits 

and health and welfare benefits are tied to his job performance, they should be included 

in his AWW. However, McDulin does not demand a different outcome in this case. In 

McDulin, the BWC set the claimant's AWW at $391.11 by dividing his reported wages for 

the prior year by 52 weeks worked. Claimant received other monies that were 

reimbursement for truck and tools, etc., and the BWC did not include these in his wages 

for purposes of AWW. An SHO found the AWW to be $400.00 based on testimony and 

evidence that claimant was being paid $10.00 per hour and normally worked a 40-hour 

week, but the SHO did not include the expense reimbursements (per diem for lodging and 

meal expenses, and expenses for the use of claimant's truck and tools), finding they were 

not includable in claimant's wages for purposes of calculating AWW. On appeal of the 

appellate court's decision affirming the commission, the Supreme Court found that the 

standard formula for establishing AWW is to divide claimant's earnings for the year 

preceding injury by 52 weeks. In rejecting claimant's attempt to substitute the term 

"income" for the terms "wages" and "earnings" in order to include his "miscellaneous 

income" (reimbursement for lodging, meals, and tool and trucking expenses), the court 

held that "income" is not synonymous with "earnings" or "wages." The court found that 

"earnings" are wages earned as compensation for labor, and "wages" are monetary 
No. 19AP-871 20

remuneration by an employer for labor or services. "Income," the court explained,

represents a gain or recurrent benefit that is measured in money and for a given period of 

time, derives from capital, labor, or a combination of both. The court concluded that 

"income" is a much broader term than "earnings" or "wages," and cannot, therefore, be 

used interchangeably. The court pointed out the distinction was important because it 

transforms claimant's proposal into an improper request that the court read into a statute 

words that are not contained therein. The court also rejected claimant's citation to other 

Ohio Revised Code and Ohio Administrative Code sections, finding they were inapplicable 

because most of them applied to unemployment compensation and not workers'

compensation and referred more broadly to the concept of income. The court also noted 

that the AWW calculation does not include forms of income unrelated to claimant's job 

performance, although lodging, meals, etc., could be part of the wage package in certain 

situations where the monies are gainful remuneration. 

{¶ 50} Initially, although the court in McDulin did not explicitly indicate that 

definitions from the unemployment compensation statutes are never applicable to 

workers' compensation cases, the court clearly implied that their applicability is 

questionable, given the broader definition of income used in the unemployment 

compensation statutes. The magistrate is disinclined to borrow definitions from 

unemployment compensation law and use them for purposes of workers' compensation 

determinations when the Supreme Court was unwilling to do so. Furthermore, although 

the Supreme Court intimated that the AWW calculation may include forms of income 

related to a claimant's job performance, there is no support in McDulin that the type of 

pension benefits and health and welfare benefits at issue in the present case are so tied to 

his job performance that they should be considered the type of gainful remuneration 

described in McDulin. In the end, the crux of the current matter is that the holding in 

McDulin does not implicate the clear legal duty urged by claimant that the commission is 

required to include his pension benefits and health and welfare benefits in his AWW. 

{¶ 51} Accordingly, for the above reasons, it is the magistrate's recommendation 

that this court should deny claimant's complaint for writ of mandamus. 

/S/ MAGISTRATE 

 THOMAS W. SCHOLL III
No. 19AP-871 21

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).