[Cite as Warren v. Morrison, 2017-Ohio-660.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

James A. Warren et al., : 

 Plaintiffs-Appellants, : 

 No. 16AP-372 

v. : (C.P.C. No. 14CV-0847)

 

Sarah D. Morrison, Administrator, : (REGULAR CALENDAR) 

Ohio Bureau of Workers' 

Compensation, : 

 Defendant-Appellee. : 

 

D E C I S I O N 

Rendered on February 23, 2017 

 

On brief: Bashein & Bashein Co., L.P.A., W. Craig Bashein, 

and John P. Hurst; Paul W. Flowers Co., L.P.A., and Paul W. 

Flowers; Plevin & Gallucci Co., LPA, and Frank Gallucci, for 

appellants. Argued: Paul W. Flowers.

On brief: Michael DeWine, Attorney General, and James A. 

Barnes; Taft Stettinius & Hollister, LLP, Ronald D. 

Holman, II, Michael J. Zbiegien, Jr., David J. Butler, and

James D. Abrams, for appellee. Argued: James D. Abrams.

 

APPEAL from the Franklin County Court of Common Pleas 

LUPER SCHUSTER, J. 

{¶ 1} Plaintiffs-appellants, James A. Warren and John Mullin, appeal from a 

judgment of the Franklin County Court of Common Pleas denying their motion for 

summary judgment and granting the summary judgment motion of defendant-appellee, 

Sarah D. Morrison, Administrator, Ohio Bureau of Workers' Compensation ("BWC"). For 

the following reasons, we affirm. 

 
No. 16AP-372 2 

I. Factual and Procedural Background 

{¶ 2} In November 2013, appellants initiated a class action against the BWC in 

the Cuyahoga County Court of Common Pleas alleging the BWC failed to follow the 

requirements of R.C. 4123.62(C) and make the proper adjustments in 2008 and 2010 to 

the statewide average weekly wage ("SAWW") applicable to the workers' compensation 

claims of the class members. The BWC moved to transfer venue to Franklin County, and 

that motion was granted in September 2014. In October 2014, appellants' complaint was 

filed in the Franklin County Court of Common Pleas. In October 2015, appellants filed an 

amended complaint, supplementing its allegation that the BWC did not properly adjust 

the SAWW as required by R.C. 4123.62(C) to include 2009, 2011, 2012, and 2014. On 

March 15, 2016, the parties filed cross-motions for summary judgment. In April 2016, the 

trial court determined that the BWC properly adjusted the SAWW for the years at issue as 

required by R.C. 4123.62(C) and therefore denied appellants' motion for summary 

judgment and granted the BWC's motion for summary judgment. 

{¶ 3} Appellants timely appeal. 

II. Assignment of Error 

{¶ 4} Appellants assign the following error for our review: 

The trial judge erred, as a matter of law, by misconstruing the 

phrase "even multiple" set forth in R.C. 4123.62(C) to include 

odd figures. 

III. Discussion 

{¶ 5} In their sole assignment of error, appellants assert the trial court's 

interpretation of R.C. 4123.62(C) was contrary to the language of the statute. Appellants 

argue that, due to this misinterpretation, the trial court erroneously denied their motion 

for summary judgment and granted the BWC's motion for summary judgment. We 

disagree. 

A. Summary Judgment Standard 

{¶ 6} This court's review of a trial court's decision on summary judgment is de 

novo. Bonacorsi v. Wheeling & Lake Erie Ry. Co., 95 Ohio St.3d 314, 2002-Ohio-2220, 

¶ 24. Summary judgment is appropriate only when the moving party demonstrates (1) no 

genuine issue of material fact exists, (2) the moving party is entitled to judgment as a 
No. 16AP-372 3 

matter of law, and (3) reasonable minds could come to but one conclusion and that 

conclusion is adverse to the party against whom the motion for summary judgment is 

made, that party being entitled to have the evidence most strongly construed in its favor. 

Civ.R. 56(C); State ex rel. Grady v. State Emp. Relations Bd., 78 Ohio St.3d 181, 183 

(1997). 

{¶ 7} Pursuant to Civ.R. 56(C), the moving party bears the initial burden of 

informing the trial court of the basis for the motion and identifying those portions of the 

record demonstrating the absence of a material fact. Dresher v. Burt, 75 Ohio St.3d 280, 

293 (1996). However, the moving party cannot discharge its initial burden under this rule 

with a conclusory assertion that the nonmoving party has no evidence to prove its case; 

the moving party must specifically point to evidence of the type listed in Civ.R. 56(C) 

affirmatively demonstrating that the nonmoving party has no evidence to support the 

nonmoving party's claims. Id.; Vahila v. Hall, 77 Ohio St.3d 421, 429 (1997). Once the 

moving party discharges its initial burden, summary judgment is appropriate if the 

nonmoving party does not respond, by affidavit or as otherwise provided in Civ.R. 56, 

with specific facts showing that a genuine issue exists for trial. Dresher at 293; Vahila at 

430; Civ.R. 56(E). 

B. Analysis 

{¶ 8} At issue in this case is the meaning of statutory language regarding the 

adjustment of the SAWW for the purpose of calculating the appropriate compensation for 

workers' compensation claims. R.C. 4123.62(C) states: 

Effective January 1, 1974, and each first day of January 

thereafter, the current maximum weekly benefit amounts 

provided in sections 4123.56, 4123.58, and 4123.59, and 

division (B) of section 4123.57 of the Revised Code shall be 

adjusted based on the increase or decrease in the statewide 

average weekly wage. 

"Statewide average weekly wage" means the average weekly 

earnings of all workers in Ohio employment subject to 

Chapter 4141. of the Revised Code as determined as of the first 

day of September for the four full calendar quarters preceding 

the first day of July of each year, by the director of job and 

family services. 
No. 16AP-372 4 

The statewide average weekly wage to be used for the 

determination of compensation for any employee who 

sustains an injury, or death, or who contracts an occupational 

disease during the subsequent calendar year beginning with 

the first day of January, shall be the statewide average weekly 

wage so determined as of the prior first day of September 

adjusted to the next higher even multiple of one dollar. 

Any change in benefit amounts is effective with respect to 

injuries sustained, occupational diseases contracted, and 

deaths occurring during the calendar year for which 

adjustment is made. 

In determining the change in the maximum benefits for any 

year after 1978, the base shall be the statewide average weekly 

wage on the first day of September of the preceding year. 

(Emphasis added.) 

{¶ 9} Ohio's rules of statutory construction guide our resolution of the issue 

presented in this case. Statutory construction presents a question of law. Akron City 

School Dist. Bd. of Edn. v. Summit Cty. Bd. of Revision, 139 Ohio St.3d 92, 2014-Ohio1588, ¶ 10. "Where the language of a statute is plain and unambiguous and conveys a 

clear and definite meaning there is no occasion for resorting to rules of statutory 

interpretation. An unambiguous statute is to be applied, not interpreted." Sears v. 

Weimer, 143 Ohio St. 312 (1944), paragraph five of the syllabus. "Only when a definitive 

meaning proves elusive should rules for construing ambiguous language be employed. 

Otherwise, allegations of ambiguity become self-fulfilling." State v. Porterfield, 106 Ohio 

St.3d 5, 2005-Ohio-3095, ¶ 11. 

{¶ 10} In the administrative law context, an agency's interpretation of a statute 

that it has the duty to enforce will not be overturned unless the interpretation is 

unreasonable. State ex rel. Clark v. Great Lakes Constr. Co., 99 Ohio St.3d 320, 2003-

Ohio-3802, ¶ 10, citing Northwestern Ohio Bldg. & Constr. Trades Council v. Conrad, 92 

Ohio St.3d 282 (2001); see R.C. 1.49(F) (a reviewing court may consider the 

"administrative construction of the statute"). Thus, a trial court must defer to an 

administrative agency's interpretation of a statute it must administer so long as the 
No. 16AP-372 5 

interpretation is reasonable and consistent with the underlying legislative intent. Oyortey 

v. State Med. Bd. of Ohio, 10th Dist. No. 12AP-431, 2012-Ohio-6204, ¶ 17. 

{¶ 11} The statutory phrase at issue here, "adjusted to the next higher even 

multiple of one dollar," is reasonably susceptible of more than one interpretation due to 

the multiple meanings of "even" in the numerical context. According to appellants, R.C. 

4123.62(C) requires the BWC to increase the SAWW to the next even, as opposed to odd, 

dollar amount.1 Conversely, the BWC argues that the statute plainly requires an 

adjustment of the SAWW upward to the next whole dollar amount, regardless of whether 

that dollar amount is an even or odd number. Appellants argue that the BWC's 

interpretation of the statute renders the word "even" superfluous, referring in support to 

statutes within the Revised Code's unemployment compensation chapter, R.C. Chapter 

4141, that include the phrase "multiple of one dollar" without a preceding "even." 

{¶ 12} Contrary to appellants' argument, we find that the BWC's interpretation of 

the phrase at issue is reasonable. The words "next higher even multiple of one dollar" 

reasonably can be construed as simply meaning the next higher whole dollar amount. In 

common usage, the word "even" can mean exactly or precisely. For example, a cashier 

may say "here is your change, an even ten dollars," to eliminate any possible uncertainty 

regarding the existence of any cents. Attaching the word "even" to "ten dollars" does not 

change the amount, but the word still has meaning. In this manner, the use of the word 

"even" in the phrase at issue in this case is not superfluous and reasonably defines the 

legislature's intent that the SAWW be increased exactly or precisely to the next whole 

dollar amount. 

{¶ 13} Because the BWC's interpretation of R.C. 4123.62(C) is reasonable and 

consistent with legislative intent, we conclude that the BWC did not violate the 

 

1 In addition to arguing that the adjusted SAWW must be a dollar amount divisible by two with no 

remainder, appellants argue in this appeal that the trial court erred in not finding that the SAWW must 

always be adjusted upward, even if that wage is already a whole dollar amount. More specifically, 

appellants contend that the BWC should have adjusted the SAWW for 2012 upward from $809.00, even 

though that is a whole dollar amount. Appellants did not, however, make this argument in support of 

their motion for summary judgment or in opposition to the BWC's motion for summary judgment. In 

fact, they represented to the trial court that the BWC had adjusted the SAWW for all years in question, 

including 2012. Thus, appellants have waived this argument on appeal. Camp v. Star Leasing Co., 10th 

Dist. No. 11AP-977, 2012-Ohio-3650, ¶ 66 (generally, an argument not raised in the trial court is waived 

on appeal). 
No. 16AP-372 6 

requirements of that statute by rounding the SAWW upward to the nearest whole dollar 

for the years at issue. Thus, the trial court properly denied appellants' motion for 

summary judgment and granted the BWC's motion for summary judgment. 

{¶ 14} Accordingly, we overrule appellants' sole assignment of error. 

IV. Disposition 

{¶ 15} Having overruled appellants' sole assignment of error, we affirm the 

judgment of the Franklin County Court of Common Pleas. 

Judgment affirmed. 

BROWN and SADLER, JJ., concur.