[Cite as State ex rel. Warner v. Indus. Comm., 131 Ohio St.3d 366, 2012-Ohio-1084.] 

THE STATE EX REL. WARNER, APPELLEE, v. INDUSTRIAL COMMISSION 

OF OHIO ET AL., APPELLANTS. 

[Cite as State ex rel. Warner v. Indus. Comm., 

131 Ohio St.3d 366, 2012-Ohio-1084.] 

Workers’ compensation—Average weekly wage—R.C. 4123.61—Unemployment 

compensation excluded from wage total—Treatment of seasonal layoffs. 

(No. 2010-1283—Submitted December 6, 2011—Decided March 22, 2012.) 

APPEAL from the Court of Appeals for Franklin County, 

No. 09AP-841, 2010-Ohio-2476. 

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Per Curiam. 

{¶ 1} Appellee, Rick D. Warner, is a construction worker who has 

periods of unemployment each year that are the result of seasonal layoffs. After 

being injured at work, Warner asked appellant Industrial Commission of Ohio to 

establish his average weekly wage (“AWW”) for the purpose of awarding future 

compensation. At issue is the treatment to be accorded those weeks of 

unemployment in calculating his AWW. 

{¶ 2} Warner began working for appellant Central Allied Enterprises, 

Inc. in 2004. Central Allied paves roadways. Warner had worked on paving 

crews before and, by his own admission, knew when he started with Central 

Allied that the work was seasonal. In the past, Warner had applied for 

unemployment compensation during the winter layoff, and he continued this 

practice during his time with Central Allied. 

{¶ 3} Warner was hurt at work on September 7, 2007, and a workers’ 

compensation claim was allowed. He later sought temporary-total-disability 

compensation, which required the commission to establish his AWW in order to 
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determine the amount of those benefits. Typically, the AWW is calculated by 

dividing total wages for the year prior to injury by 52 weeks. State ex rel. Clark 

v. Indus. Comm., 69 Ohio St.3d 563, 565, 634 N.E.2d 1014 (1994). R.C. 4123.61, 

however, contains exceptions to this general formula, one of which requires the 

commission to exclude from the calculation “any period of unemployment due to 

sickness, industrial depression, strike, lockout, or other cause beyond the 

employee’s control.” 

{¶ 4} Evidence established that in the year prior to injury, Warner had 

worked for 30 weeks and had been unemployed for 22 due to the seasonal layoff. 

During that time, he had received both wages for the weeks worked and 

unemployment compensation for the weeks that he did not. Warner proposed two 

different figures for his AWW. The first excluded his 22 weeks of unemployment 

and the associated unemployment benefits from the calculation. In the 

alternative, he advocated including both the number of weeks that he was 

unemployed and the dollar amount of his unemployment compensation in the 

formula. Warner clearly indicated that he was not seeking both to exclude his 

weeks of unemployment and to include the corresponding unemployment 

compensation. 

{¶ 5} A commission staff hearing officer (“SHO”) rejected both 

proposals. He excluded from the wage total the amount of unemployment 

compensation received but included in the weekly divisor the number of weeks 

that Warner did not work. In refusing to exclude the number of weeks that 

Warner was unemployed from the weekly divisor, the SHO found that Warner’s 

weeks of unemployment were not beyond his control and thus not within the 

exception of R.C. 4123.61. Citing Warner’s previous experience in the industry 

and his years with Central Allied, the SHO found: 
January Term, 2012 

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[T]he seasonal layoff was not unforeseen and is a normal part of 

employment within this industry. The Claimant has presented no 

evidence of any attempt to look for work during his period of 

seasonal layoff. Thus, the Hearing Officer finds that the 

unemployment sustained by the Claimant represents a lifestyle 

choice and shall not be excluded from the calculation of the 

Average Weekly Wage. State ex rel. Baker Concrete Constr., Inc. 

v. Indus. Comm. (2004), 102 Ohio St.3d 149 [2004-Ohio-2114, 

807 N.E.2d 347]. 

{¶ 6} The SHO also rejected Warner’s alternative request to add the 

dollar amount of his unemployment compensation to the total amount earned in 

the year preceding injury. Citing State ex rel. McDulin v. Indus. Comm., 89 Ohio 

St.3d 390, 732 N.E.2d 367 (2000), the SHO concluded that unemployment 

benefits were not “wages” and could not be included in the AWW computation. 

{¶ 7} After further appeal was refused, Warner filed a complaint in 

mandamus in the Court of Appeals for Franklin County. There, Warner 

prevailed, and the court issued a limited writ ordering the commission to further 

consider Warner’s request. The court held that the commission had abused its 

discretion in failing to include the dollar amount of Warner’s unemployment 

compensation because it was federally taxable income under the Internal Revenue 

Code. The court also criticized the commission’s finding that there was no 

evidence that Warner had looked for other work during the seasonal layoff, citing 

Warner’s receipt of unemployment compensation, which, under R.C. 

4141.29(A)(4)(a)(i), required proof of a job search. 

{¶ 8} The commission and Central Allied now appeal to this court as a 

matter of right. Warner has been joined by amici curiae Ohio Association of 
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Claimants’ Counsel and Ohio Association for Justice, which urge the exclusion of 

Warner’s 22 weeks of unemployment from the formula’s denominator.

{¶ 9} The average weekly wage is intended to “ ‘find a fair basis for 

award for the loss of future compensation.’ ” State ex rel. Wireman v. Indus. 

Comm., 49 Ohio St.3d 286, 287, 551 N.E.2d 1265 (1990), quoting Riley v. Indus. 

Comm., 9 Ohio App.3d 71, 73, 458 N.E.2d 428 (1983). The figure must do 

substantial justice to the claimant, but it cannot create a windfall. Wireman at 287. 

In the case at bar, we must determine whether the commission abused its 

discretion in (1) including Warner’s 22 weeks of unemployment in the formula’s 

divisor or (2) excluding the amount of unemployment compensation he received 

for those weeks in his wage total. 

Weeks of unemployment 

{¶ 10} In setting the AWW, “any period of unemployment due to 

sickness, industrial depression, strike, lockout, or other cause beyond the 

employee’s control shall be eliminated.” R.C. 4123.61. Seasonal unemployment 

is not listed in the statute, so Warner can prevail only if he establishes that those 

weeks of unemployment were beyond his control. 

{¶ 11} Appellants assert that Warner’s weeks of unemployment were not 

beyond his control. They stress that Warner had been a seasonal construction 

worker for years and was accustomed to its cycle of work and layoff. Because 

Warner chose to remain in this occupation knowing that he would be released at 

season’s end, appellants argue that the layoff was not an unanticipated 

circumstance and, by extension, neither was the period of unemployment that 

followed. 

{¶ 12} Warner disagrees. He does not dispute that his yearly layoff was 

foreseeable and that in remaining with Central Allied, he tacitly assented to it. 

What was never foreseeable, Warner argues, was whether he would be able to 

find another job over the winter. Warner claims that over the period in question 
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he tried to find other employment and cites his receipt of unemployment 

compensation as proof of that. Thus, while he may have assented to a winter 

layoff, he did not voluntarily choose to remain unemployed during that time. 

This, according to Warner, rendered his unemployment beyond his control. 

{¶ 13} Foreseeability of job loss does not necessarily render seasonal 

unemployment voluntary. State ex rel. Baker Concrete Constr., Inc. v. Indus. 

Comm., 102 Ohio St.3d 149, 2004-Ohio-2114, 807 N.E.2d 347, ¶ 15. Certainly, 

seasonal unemployment can be considered voluntary when it is the result of a 

worker’s choice to enjoy the time off rather than look for another job during the 

off-season. On the other hand, many seasonal employees want to work during the 

layoff but, despite diligent efforts, cannot find other employment. In those 

situations, unemployment may be considered to be beyond the individual’s 

control. 

{¶ 14} Warner cites his receipt of unemployment compensation as proof 

that he looked for work during the winter layoff. Baker Concrete, however, 

declared that a claimant’s receipt of unemployment compensation did not, for 

workers’ compensation purposes, automatically establish that postlayoff 

unemployment was beyond the individual’s control. It acknowledged that receipt 

of those benefits required an ongoing search for work, but it also recognized that a 

job search had a qualitative component. Given the independence of the workers’ 

compensation and unemployment-compensation systems, we noted, “A job search 

sufficient to satisfy [the Ohio Bureau of Employment Services] might not satisfy 

the commission.” Baker Concrete at ¶ 23. 

{¶ 15} In this case, the commission never addressed the adequacy of 

Warner’s job search because it wrongly believed that he had not presented any 

evidence of a search for other employment. The court of appeals was accordingly 

correct in ordering further consideration of this issue, and that portion of its 

judgment is hereby affirmed. 
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The dollar amount of Warner’s unemployment benefits 

{¶ 16} The court of appeals ordered the commission to include the amount 

of Warner’s unemployment benefits based solely on its status as federally taxable 

income. McDulin, 89 Ohio St.3d 390, 732 N.E.2d 367, however, declared federal 

taxability to be irrelevant in determining what to include in the AWW calculation. 

Inclusion of unemployment compensation, moreover, could create an 

impermissible windfall in situations where the commission has determined that 

weeks of unemployment were beyond the claimant’s control and omitted those 

weeks from the AWW calculation. Accordingly, that portion of the court of 

appeals judgment is reversed. 

{¶ 17} We hereby return the cause to the commission to determine 

whether Warner’s weeks of unemployment were beyond his control. We clarify 

that on remand, the commission should total only Warner’s Central Allied wages 

from the year prior to his September 7, 2007 injury and divide by 52, unless 

Warner shows that he was not able to be employed during any of the 22 weeks 

during which he was seasonally laid off. Any week during the layoff in which his 

unemployment was beyond his control within the meaning of R.C. 4123.61 

should be excluded from the divisor. Thus, if all unemployment time satisfies the 

statute, Warner’s total wages would be divided by 30 to produce an average 

weekly wage. Accordingly, we affirm that portion of the court of appeals 

judgment that returned the cause for further consideration of this matter. 

{¶ 18} We additionally order the commission to exclude the amount of 

Warner’s unemployment compensation from his wage total and reverse that 

portion of the court of appeals judgment directing otherwise. 

Judgment affirmed in part 

and reversed in part. 

O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,

LANZINGER, CUPP, and MCGEE BROWN, JJ., concur. 
January Term, 2012 

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__________________ 

The Stocker Pitts Law Firm and Dana M. Debski, for appellee. 

Michael DeWine, Attorney General, and Gerald H. Waterman, Assistant 

Attorney General, for appellant Industrial Commission. 

Kastner, Westman & Wilkins, L.L.C., and James W. Ellis, for appellant 

Central Allied Enterprises, Inc. 

Philip J. Fulton Law Office, Philip J. Fulton, and Chelsea J. Fulton, urging 

affirmance for amici curiae Ohio Association of Claimants’ Counsel and Ohio 

Association for Justice. 

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