Average Weekly Wage Recalculated Due to Special Circumstances

Note: This decision has been overruled by State, ex rel. Stevens v. Indus. Comm. (7/19/06).

State, ex rel. Lemke v. Brush Wellman Inc. (12/16/98), 81 Ohio St.3d 161:

In Lemke the Supreme Court held that the special circumstances exception should be used to calculate a worker's average weekly wage. The worker had been diagnosed with berylliosis in 1970, and the Commission had calculated his average weekly wage based on his earnings in 1969.

The worker had continued to work, despite significant impairment from his occupational disease, for the next eighteen years. His disease finally forced him from the job market in 1990, and he was awarded permanent total disability.

The Supreme Court held that the special circumstances exception to calculating the average weekly wage applied, and therefore the average weekly wage should be calculated based on his earnings in the last year before his disease forced him from the job market.

The Court noted that "[a]n employee who is able to earn a living only be persevering for more than eighteen years while losing ground to insidious occupational disease should be compensated equitably for his or her disability . . . [the injured worker's] AWW was only $52.50, an amount so low that it manifestly raises the spectre of inequity." [slip op. at 3.]

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