Special Circumstances Provision Does Not Apply

State ex rel. Stevens v. Indus. Comm. (7/19/06), 110 Ohio St.3d 32, 2006-Ohio-3456:

Issue: When an injured worker works for 15 years after suffering a heart attack before dying of a heart attack which was related to the first heart attack, does the "special circumstances" provision of R.C. § 4123.61 apply to increase the average weekly wage upon which death benefits are based?

Background:  Stevens suffered a work-related heart attack in 1982. He returned to work after the heart attack, and worked for another 15 years before suffering a second heart attack and dying.

A death claim was allowed. The Commission found that the second heart attack was causally related to the first heart attack. Benefits were based on Stevens’ 1982 average weekly wage.

Stevens’ widow appealed the amount of the death benefit, claiming that the special circumstances provision of R.C. § 4123.61 should be used to increase the benefit. The widow claimed that the special circumstances were the fact that Stevens had worked for 15 years after the first injury and his wages had increased over that time.

The Commission refused to recalculate the average weekly wage. Stevens’ widow filed a mandamus complaint in the Court of Appeals to challenge that decision. After that Court denied the requested writ, Stevens’ widow appealed.

The Supreme Court states that a natural increase of wages is not an "uncommon" condition and therefore does not justify application of the "special circumstances provision.

However, in two earlier cases, State ex rel. Lemke v. Brush Wellman, Inc. (1998), 84 Ohio St.3d 161, and State ex rel. Price v. Cent. Servs., Inc. (2002), 97 Ohio St.3d 245, 2002-Ohio-6397, the Supreme Court had held that the average weekly wage should be increased in circumstances similar to those of the present case.

Lemke had held that

[a]n employee who is able to earn a living only by persevering for more than eighteen years while losing ground to insidious occupational disease should be compensated equitably for his or her disability.

The Supreme Court now determines that such employees should not be compensated equitably for their disability, and overrules Lemke and Price.

The Supreme Court ironically ends its decision by requesting the legislature to fix the problem apparent in this case "and fashion a method to allow the average weekly wage to more accurately reflect, over time, the economic realities of the individual claimant."