Weeks of Seasonal Employment May Be Excluded
State ex rel. Warner v. Indus. Comm. (3/22/12), 131 Ohio St.3d 366, 2012-Ohio-1084.
Issue: What effect do periods of seasonal unemployment have on the average weekly wage calculation?
Background: Warner worked as a construction worker. Due to the seasonal nature of the construction industry, he had a seasonal layoff each year. He received unemployment compensation during the seasonal layoff.
The Commission calculated Warner’s average weekly wage, using the standard calculation, by dividing his earnings for the year before the injury by 52 weeks. The Commission did not exclude Warner’s 22 weeks of unemployment from the calculation. Nor did the Commission include the unemployment compensation Warner received when calculating Warner’s earnings for the year before his injury.
Warner filed a mandamus challenge to the Industrial Commission’s average weekly wage calculation. The Court of Appeals granted a writ of mandamus ordering the Industrial Commission to recalculate the average weekly wage. The Industrial Commission and employer appealed.
Decision: Supreme Court affirms.
R.C. §4123.61 indicates periods of unemployment excluded from the average weekly wage calculation. The statute does not exclude seasonal unemployment but does exclude periods of unemployment due to a “cause beyond the employee’s control.” Therefore, the question is whether his seasonal unemployment was beyond Warner’s control.
The Industrial Commission and employer argue that the seasonal unemployment was not beyond Warner’s control because he chose to work in an industry with seasonal employment. They claim that Warner’s choice to work in this industry meant that the seasonal unemployment was not unanticipated.
The Supreme Court rejects this argument because “[f]oreseeability of job loss does not necessarily render seasonal unemployment voluntary.” If an employee chooses to remain unemployed during seasonal unemployment, rather than seeking a job, then the unemployment may be due to a lifestyle choice and would not be “beyond the employee’s control.” However, many employees seek work during seasonal unemployment but cannot find a job. In such a situation, the unemployment is beyond the employee’s control.
Although Warner received unemployment compensation, which requires a job search, the Supreme Court does not find him automatically entitled to exclusion of the weeks of unemployment. The Court says the standards for unemployment compensation and workers’ compensation are different. Therefore, the Commission must consider whether Warner’s job search was adequate.
Editor’s Comment: The Court finds no basis for including the amount of unemployment compensation Warner received when calculating his earnings for the year before his injury.