Citations
- 55 Ohio App. 3d 186
Full opinion text
Brown, J.
Relator, Alvin Erkard, filed this original action requesting that this court issue a writ of mandamus ordering respondent, the Industrial Commission, to vacate its order affirming the calculation of his average weekly wage at $408.62 and his full weekly wage at $244.48, and to issue an order finding that he is entitled to a full and average weekly wage calculation of $589.60 in accordance with R.C. 4123.61.
This action was referred to a referee pursuant to Civ. R. 53 and Section 13, Loe. R. 11 of the Tenth District Court of Appeals. On June 7, 1988, the referee issued a report and recommendation including findings of fact and conclusions of law. She recommends that the requested writ be denied.
Relator has filed objections to the report. For the reasons that follow, we overrule the objections and deny the requested writ.
The sole question raised in this case is the rate of temporary total disability compensation relator should receive as a result of the ankle injury he incurred as a laborer in the construction industry on September 4, 1985. The Industrial Commission claim file has been stipulated as the evidence in this action. A review of that file reveals that a claims examiner for the Bureau of Workers’ Compensation (“bureau”) set relator’s full weekly wage at $244.48 and his average weekly wage at $408.62. The full weekly wage amount was set by reference to relator’s gross regular earnings for the weekly pay period that ended immediately prior to the injury. Relator worked sixteen regular hours during that week. The average weekly wage amount, as shown on the claims examiner’s worksheet, represents relator’s gross earnings for the year preceding September 4, 1985, $5,312.06, divided by 13, the number of weekly pay periods in which relator did some work during the year. Most of these thirteen weeks fell during the summer months of 1985. During some of the thirteen weeks, relator worked only one eight-hour day. In other weeks, he worked three or four eight-hour days. Including overtime, relator worked a full forty-hour week only three times during the year preceding his injury. Apparently, during the other thirty-nine weeks of the year relator was unemployed.
Subsequent to the bureau’s action, relator filed a C-86 motion requesting that his average weekly wage and full weekly wage be set at $589.60. This amount reflects the earnings relator would have received if he had worked a full forty-hour week. The district hearing officer and the regional board of review of the Industrial Commission thereafter affirmed the bureau’s calculation of relator’s full and average weekly wage.
The Industrial Commission, through a staff hearing officer, affirmed the regional board of review. The officer’s rationale was stated, as follows:
“It is the finding of the Commission that claimant was on a seasonal layoff during the winter of 1984-1985 pursuant to the predictable weather conditions of northern Ohio and the recurrent constraints imposed upon his chosen vocation, the construction trade. The finding and order of the Regional Board is well substantiated both mathematically and statutorally [sic], and provides for substantial justice to the claimant as provided in R.C. 4123.61.”
This court’s referee found no abuse of discretion, the relator not having shown that the commission failed to afford him substantial justice.
We first address the controversy concerning relator’s average weekly wage. R.C. 4123.61 sets forth the matters that control the setting of relator’s average weekly wage. The statute states, as follows:
“The average weekly wage of an injured employee at the time of the injury or at the time disability due to the occupational disease begins shall be taken as the basis upon which to compute benefits.