The opinion
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The State ex rel. The Andersons, Appellant, v. Industrial
Commission of Ohio et al., Appellees.
[Cite as State ex rel. The Andersons v. Indus. Comm.
(1992), Ohio St.3d .]
Workers' compensation -- Wage loss compensation -- Claimant's
layoff does not bar wage loss compensation, when --
Calculation of average weekly wage.
(No. 91-120 -- Submitted May 12, 1992 -- Decided September
2, 1992.)
Appeal from the Court of Appeals for Franklin County, No.
90AP-212.
Appellee-claimant, Todd Rosonowski, graduated from high
school in 1983. Unable to secure full-time employment, he took
a seasonal position with Johnston's Fruit Farm. On August 25,
1986, claimant was hired by appellant, The Andersons. Assigned
to the lawn fertilizer division, claimant was exposed to
chemicals while bagging, sealing and palletizing yard care
products.
At the time of hiring, appellant told claimant that the
work was strictly seasonal, lasting six to eight months. In
early 1987, claimant's hourly wage was raised from $6.04 to
$6.51 an hour. Shortly thereafter, claimant filed, and
appellant certified, a claim for "chemical rash, right hand."
On April 10, 1987, the lawn season ended and claimant was
laid off as planned. Because of disciplinary problems during
his tenure, appellant decided not to rehire claimant the next
season.
In June 1987, claimant saw Dr. Joseph Schneider for the
continuing rash on claimant's hand. Dr. Schneider diagnosed
claimant's condition as dyshidrotic eczema and contact
dermatitis with secondary infection. He released claimant to
return to work on July 13, 1987 with the restriction that he
avoid chemical exposure.
Claimant remained unemployed until January 1, 1988, and
became unemployed again on April 16, 1988.
On November 9, 1988, claimant asked appellee Industrial
Commission to set his average weekly wage ("AWW") at $260.40
and to award wage loss compensation under R.C. 4123.56(B). In
support, claimant submitted (1) Dr. Schneider's July 1987
report; (2) claimant's affidavits outlining his work history
and indicating an inability to find subsequent work due to his
allowed hand condition, and (3) his Ohio Bureau of Employment
Services card.
A commission district hearing officer, relying on Dr.
Schneider's reports, awarded wage loss compensation from April
10, 1987 through November 3, 1988 and "thereafter upon
submission of wage statements." Claimant's AWW was set at
$260.40, based on $6.51 per hour times forty hours. A regional
board of review modified the district hearing officer's order
to the extent that the wage loss award was to be offset by any
concurrent Ohio Bureau of Employment Services benefits. The
balance of the order was affirmed. Staff hearing officers, in
turn, affirmed the regional board in all but one respect,
resetting claimant's AWW at $237.37. Instead of multiplying
claimant's hourly wage by forty, staff hearing officers,
pursuant to R.C. 4123.61, divided claimant's total earnings for
the year prior to injury by the number of weeks he worked,
specifically excluding the period during which claimant was
laid off. Staff hearing officers reset claimant's AWW at
$237.37 by excluding weeks of unemployment from the number of
weeks divided into claimant's total wages.
Appellant sought a writ of mandamus from the Court of
Appeals for Franklin County, claiming that the commmission had
abused its discretion both in computing claimant's AWW and in
awarding wage loss compensation. The court of appeals
disagreed and denied the writ.
This cause is now before this court upon an appeal as of
right.
Marshall & Melhorn and Michael S. Scalzo, for appellant.
Lee I. Fisher, Attorney General, Dennis L. Hufstader and
Teresa Oglesby McIntyre, for appellee Industrial Commission.
Gallon, Kalniz & Iorio Co., L.P.A., and Theodore A.
Bowman, for appellee claimant.
Per Curiam. Appellant challenges both the commission's
award of wage loss compensation and the commission's
computation of claimant's AWW. Our review reveals that the
commission's order was based in part on an abuse of discretion
and, accordingly, the judgment below is affirmed in part and
reversed in part.
Effective August 22, 1986, R.C. 4123.56(B) states:
"Where an employee in a claim allowed under this chapter
suffers a wage loss as a result of returning to employment
other than his former position of employment or as a result of
being unable to find employment consistent with the claimant's
physical capabilities, he shall receive compensation at
sixty-six and two-thirds of his weekly wage loss not to exceed
the statewide average weekly wage for a period not to exceed
two hundred weeks."
Supplementing the statute, Ohio Adm.Code 4121-3-32(D)
provides:
"In injury claims in which the date of injury, or in
occupational disease claims in which the date of disability, is
on or after August 22, 1986, the payment of compensation or
wage loss pursuant to division (B) of Section 4123.56 of the
Revised Code shall commence upon application with the finding
of any of the following:
"(1) The employee, as a direct result of the allowed
conditions in the claim, returns to employment other than his
former position of employment and suffers a wage loss.
"(2) The employee returns to his former position but
suffers a wage loss.
"(3) The employee, as a direct result of the allowed
conditions in the claim, is unable to find work consistent with
the employee's physical capabilities and suffers a wage loss."
The commission's award was premised on subsection (3) and
the commission's determinations: (1) that claimant received no
wages from April 10, 1987 through November 3, 1988, and (2)
that his lack of wages stemmed from his inability to work at
The Andersons or secure other employment because of his allowed
conditions. Appellant responds: (1) that the layoff is
evidence that there was no causal relationship between injury
and wage loss, and (2) that there is no contrary evidence of
the requisite causal relationship. We disagree.
We find initially that the commission abused its
discretion in awarding wage loss compensation from January 1,
1988 through April 15, 1988. The commission apparently found
that claimant did not work between April 10, 1987 and November
3, 1988. However, sworn wage statements substantiated total or
partial loss of wages only from April 10, 1987 through December
31, 1987 and April 16, 1988 forward. There is no evidence of
any wage loss from January 1, 1988 through April 15, 1988.
Claimant admits in his brief that he worked for Johnston's
Fruit Farm from January 1, 1988 through April 15, 1988.
Appellant asserts that claimant's layoff shows that any
wage loss was not caused by the allowed conditions. Prior
decisions have not addressed a layoff's effect on R.C.
4123.56(B) wage loss benefits. We have, however, discussed the
issue with respect to the companion provision for temporary
total disability compensation, now at R.C. 4123.56(A). State
ex rel. B.O.C. Group v. Indus. Comm. (1991), 58 Ohio St.3d 199,
569 N.E.2d 496.
Like R.C. 4123.56(B) benefits, temporary total disability
compensation replaces lost wages. State ex rel. Ashcraft v.
Indus. Comm. (1987), 34 Ohio St.3d 42, 517 N.E.2d 533.
Similarly, the temporarily and totally disabled claimant must
always causally relate the claimed disability to the industrial
injury. The requisite causal connection in temporary total
disability cases, can, under certain circumstances, be broken
when an employment relationship ends. Voluntary departure, for
example, severs the causation chain. "Involuntary" departure
does not. Ashcraft; State ex rel. Rockwell Internatl. v.
Indus. Comm. (1988), 40 Ohio St.3d 44, 531 N.E.2d 678.
An injury-induced departure is always considered
involuntary. Rockwell. The character of other departures,
however, can depend on many factors. Layoff is often
considered involuntary since it is initiated by the employer,
not the employee. State ex rel. B.O.C. Group, supra. In this
case, claimant's departure was initiated by the employer,
without evidence of any intent on claimant's part to abandon
employment. Appellant nonetheless in effect urges us to find
that the departure was voluntary, since claimant accepted
employment knowing that he would be released at season's end.
Appellant's position, however, conflicts with our policy of
encouraging gainful employment. See, e.g., State ex rel.
Wireman v. Indus. Comm. (1990), 49 Ohio St.3d 286, 551 N.E.2d
1265, and State ex rel. Diversitech Gen. Plastic Film Div. v.
Indus. Comm. (1989), 45 Ohio St.3d 381, 544 N.E.2d 677. Its
argument ignores the possibility that claimant took the
temporary position with The Andersons because it was the only
job he could find. For this reason, we reject appellant's
argument and find that claimant's layoff does not bar wage loss
compensation in this instance.
We must next determine whether "some evidence" supports a
causal relationship between claimant's allowed conditions and
his lack of wages. We find that "some evidence" exists. Dr.
Schneider's reports establish that claimant's allowed condition
would have prevented him from resuming his former position of
employment. Claimant's Ohio Bureau of Employment Services card
indicates that he was looking for work, presumably consistent
with Dr. Schneider's restrictions. Claimant's sworn wage
statements, however, indicate that his efforts were
unsuccessful. Taken together, these documents are "some
evidence" supporting claimant's alleged wage loss due to the
allowed conditions. State ex rel. Burley v. Coil Packing, Inc.
(1987), 31 Ohio St.3d 18, 31 OBR 70, 508 N.E.2d 936.
Turning to claimant's AWW, the commission, as a general
rule, computes AWW by dividing claimant's total wages for the
year preceding the date of injury by fifty-two weeks. R.C.
4123.61. The statute, however, also provides in part:
"In ascertaining the average weekly wage for the year
previous to the injury, or the date the disability due to the
occupational disease begins any period of unemployment due to
sickness, industrial depression, strike, lockout, or other
causes beyond the employee's control shall be eliminated."
In the case at bar, the commission calculated claimant's
AWW at $237.37 by excluding periods of unemployment. The
appellant claims that because claimant voluntarily accepted
seasonal work, layoff periods were not beyond his control and,
therefore, should not have been excluded. For the reasons
stated previously, this argument is rejected.
Appellant also alleges that the AWW creates a windfall for
claimant since it exceeds any weekly wage received by claimant
when he was working. This, too, fails. Wage loss compensation
is paid at sixty-six and two-thirds percent of the AWW.
Two-thirds of claimant's AWW, as set by the commission, is
$158.24. Claimant's weekly wage with appellant, based on a
forty-hour week, was $260.40. Claimant's AWW thus does not
provide a windfall for the claimant.
Appellant's claim that the commission did not adequately
explain its calculation also lacks merit. The commission's
order specifically indicated that it omitted weeks of
unemployment in arriving at its figure. Contrary to
appellant's representation, this explanation satisfies State ex
rel. Mitchell v. Robbins & Myers, Inc. (1983), 6 Ohio St.3d
481, 6 OBR 531, 453 N.E.2d 721.
We reverse that portion of the appellate court's judgment
sustaining the commission's wage loss award from January 1,
1988 through April 15, 1988. We order the commission to
recalculate the award in accordance with this decision.
The balance of the judgment is affirmed.
Judgment reversed in part,
affirmed in part
and writ allowed in part.
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown
and Resnick, JJ., concur.