Average Weekly Wage Calculation Includes All Jobs

Average Weekly Wage Calculation Includes All Jobs

Posted: July, 2010

State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm. (6/8/10), 126 Ohio St.3d 37, 2010-Ohio-2451.

Issue: Did the Industrial Commission properly included wages from two jobs when it calculated the injured worker’s average weekly wage?

Background: Roper made between $190 and $250 per week in his job with the employer. Roper also worked a second job, which paid more than his job with the employer, and also ran his own business.

After Roper was injured, the self-insured employer set Roper’s average weekly wage at $160.45. The Commission used the special circumstances provision of R.C. §4123.61 to calculate the average weekly wage. and reset the average weekly wage at $417.05, based on the income from Roper’s second job (because Roper’s business operated at a loss, it appears that the Commission did not use it as a factor in the average weekly wage calculation).

The employer filed a mandamus challenge to that decision, which was denied by the Court of Appeals. The employer appealed.

Decision: Supreme Court affirms.

The purpose of the average weekly wage is to

approximate the average amount that the claimant would have received had he continued working after the injury as he had before the injury.

Under R.C. §4123.61 the average weekly wage is generally calculated by taking the earnings for the year before the injury and dividing by 52 weeks. If the standard method for calculating the average weekly wage will not result in a just determination, the statute contains a special circumstances provision which permits the Commission to use an alternate method of calculation which will result in “substantial justice.”

The Supreme Court finds that the Industrial Commission properly calculated the average weekly wage. However, the Court indicates that the Commission did not need to use the special circumstances provision to include income from both jobs Roper worked.

R.C. §4123.61 refers to wages earned in the year before the injury “without qualification or exclusion.” Use of the special circumstances provision is not necessary, because the standard calculation should include all earnings for the year before injury, no matter what job the earnings came from.

The Court rejects the employer’s argument that it is unfair to the employer to include income from both jobs because “if a claimant is so severely hurt at one job as to disable him or her from both, it is not unfair to compensate the individual for that cumulative loss.”

Editor’s Comment: The Court also rejected the employer’s challenge to the calculation of the full weekly wage, deferring to the Commission’s calculation.

Information courtesy of the Ohio Workers’ Compensation Bulletin. Subscribe to the Ohio Workers’ Compensation Bulletin to keep informed about the Ohio workers’ compensation system.