[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Tantarelli v. Decapua Ents., Inc., Slip Opinion No. 2019-Ohio-517.]




                                           NOTICE
      This slip opinion is subject to formal revision before it is published in an
      advance sheet of the Ohio Official Reports. Readers are requested to
      promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
      South Front Street, Columbus, Ohio 43215, of any typographical or other
      formal errors in the opinion, in order that corrections may be made before
      the opinion is published.



                           SLIP OPINION NO. 2019-OHIO-517
  THE STATE EX REL. TANTARELLI, APPELLANT, v. DECAPUA ENTERPRISES,
                                 INC., ET AL., APPELLEES.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
  may be cited as State ex rel. Tantarelli v. Decapua Ents., Inc., Slip Opinion
                                   No. 2019-Ohio-517.]
Workers’ compensation—R.C. 4123.61—Calculation of average weekly wage—
        Industrial Commission did not abuse discretion in concluding res judicata
        barred claimant’s motion to recalculate average weekly wage—court of
        appeals’ judgment denying writ of mandamus affirmed.
   (No. 2017-0922—Submitted January 8, 2019—Decided February 14, 2019.)
      APPEAL from the Court of Appeals for Franklin County, No. 16AP-700,
                                      2017-Ohio-5603.
                                    ________________
        Per Curiam.
                              SUPREME COURT OF OHIO




                                I. INTRODUCTION
       {¶ 1} This workers’ compensation case involves the calculation of appellant
Anthony Tantarelli’s average weekly wage (“AWW”). Tantarelli twice moved
appellee Industrial Commission to dispense with the standard statutory formula and
to instead calculate his AWW using a method that would do him “substantial
justice,” as R.C. 4123.61 permits in cases of “special circumstances.”           The
commission denied the first motion on the merits and the second on grounds of res
judicata as well as on the merits. Based solely on its agreement that Tantarelli had
not established special circumstances, the Tenth District Court of Appeals denied
Tantarelli’s petition for a writ of mandamus. He now asks this court to reverse that
judgment. We affirm the denial of the writ, but we do so on the basis of res judicata.
                  II. FACTS AND PROCEDURAL HISTORY
                      A. Tantarelli’s Employment and Injury
       {¶ 2} Appellee Decapua Enterprises, Inc. (“Decapua”), hired Tantarelli
through a temporary agency in July 2013. Tantarelli was injured while working for
Decapua less than a month later. His workers’ compensation claim was allowed
for injuries to his hip, hand, rotator cuff, neck, wrist, and shoulder.
                               B. Tantarelli’s AWW
       {¶ 3} Under R.C. 4123.61, the basis upon which to compute workers’
compensation benefits is the “average weekly wage of [the] injured employee at
the time of the injury.” R.C. 4123.61 refers to the AWW “for the year previous to
the injury.” The standard calculation to determine AWW is to divide by 52 weeks
the worker’s income from the year preceding the date of injury. See State ex rel.
Ohio State Univ. Hosp. v. Indus. Comm., 118 Ohio St.3d 170, 2008-Ohio-1969, 887
N.E.2d 325, ¶ 2. Using this formula, Decapua, a self-insured employer, divided by
52 weeks the wages that Tantarelli earned between his July 2013 start date and his
August 2013 injury and set Tantarelli’s AWW at $22.26.




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                                January Term, 2019




       {¶ 4} R.C. 4123.61 provides that “any period of unemployment due to
sickness, industrial depression, strike, lockout, or other cause beyond the
employee’s control shall be eliminated” from the number of weeks by which the
previous year’s salary is divided. It further provides,


                In cases where there are special circumstances under which
       the average weekly wage cannot justly be determined by applying
       this section, the administrator of workers’ compensation, in
       determining the average weekly wage in such cases, shall use such
       method as will enable the administrator to do substantial justice to
       the claimants * * *.


R.C. 4123.61.
                           C. Tantarelli’s 2014 Motion
       {¶ 5} In February 2014, Tantarelli filed a motion asking the commission to
divide his previous year’s wages by the 3 weeks he had worked for Decapua, rather
than by 52 weeks, and set his AWW at $416.58. In an accompanying affidavit,
Tantarelli swore that during the period beginning one year before his injury and
ending in July 2013—when he started working at Decapua—he was “unemployed
but actively seeking employment.”
       {¶ 6} A district hearing officer (“DHO”) for the commission denied the
motion. The DHO noted that Tantarelli “could only identify three potential
employers that he contacted during the alleged 49 week unemployment period and
no historical wage information was submitted to the file.” The DHO concluded
that Tantarelli had “failed to submit sufficient credible evidence to exclude 49
weeks from the standard formula or support an alternative calculation.”
       {¶ 7} Tantarelli appealed the DHO’s order, and a staff hearing officer
(“SHO”) affirmed it in October 2014. The SHO first noted Tantarelli’s testimony




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that prior to his stint at Decapua, he last had regular employment in 2008, when he
worked as a self-employed tow-truck operator.         The SHO then found that
Tantarelli’s sworn statement that he had been unemployed but actively seeking
employment in the 49 weeks preceding his employment with Decapua remained
“undocumented and substantially unsupported,” as evidenced by the fact that
Tantarelli could only identify three potential employers he contacted during that
time. In addition, the statement was contradicted by Tantarelli’s own sworn hearing
testimony that during those 49 weeks, he had engaged in some “miscellaneous”
work, including buying cars and selling car parts and hauling items to scrap yards.
The SHO noted that Tantarelli failed to provide any documentation of his earnings
for those activities and admitted at the hearing that he had not filed a tax return
showing that income. Based on these facts, the SHO concluded that Tantarelli had
“failed to establish the existence of special circumstances which would justify the
use of an alternate calculation to the standard 52 week divisor used in determining
an average weekly wage.” The commission refused Tantarelli’s appeal of the
SHO’s order in November 2014.
                          D. Tantarelli’s 2016 Motion
       {¶ 8} In January 2016, Tantarelli filed a new motion asserting that his
AWW does not provide substantial justice and asking the commission to reset it
pursuant to R.C. 4123.61. A DHO denied the motion, finding that Tantarelli had
not presented new evidence of special circumstances that would warrant an increase
in his AWW.
       {¶ 9} Tantarelli appealed the DHO’s order, and an SHO affirmed it in July
2016. At the hearing before the SHO, Tantarelli asked that his AWW be set at
$320. Tantarelli’s argument to the SHO focused in part on his preinjury earnings
and employment history and in part on his postinjury earnings. He argued that he
had made more money during the 27 years that he had operated his own business—
which folded in 2002—than he made during the year preceding his 2013 injury. He



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                                January Term, 2019




also argued that he had made more money after his injury. In 2014, he made over
$12,000, as documented by an Internal Revenue Service miscellaneous-income
form (“form 1099-MISC”). He claimed that he had made approximately $39,000
in 2015, as shown by copies of checks from K & K Towing and Recovery, which
Tantarelli claimed had paid him by the job for towing vehicles. The SHO noted,
however, that Tantarelli had not submitted a form 1099-MISC reflecting that 2015
income, and the SHO found that it was unclear whether Tantarelli had reported
those earnings for tax purposes.
       {¶ 10} The SHO found that the 2014 SHO order had already specifically
determined that special circumstances justifying an alternative AWW calculation
did not exist. The SHO therefore concluded that “the issue of resetting the [AWW]
due to special circumstances is res judicata.” Despite this, the SHO considered
Tantarelli’s evidence, noting that the record contained no information about the
wages Tantarelli had earned from his own business, which were, in any event,
“remote in time (in 2002),” and contained insufficient documentation of
Tantarelli’s wages in 2015. The SHO concluded that Tantarelli had failed to
provide sufficient documentation of special circumstances meriting an alternative
AWW calculation. The commission refused Tantarelli’s appeal of the SHO’s order
in August 2016.
                        E. Tantarelli’s Mandamus Action
       {¶ 11} In October 2016, Tantarelli filed his mandamus complaint asking the
Tenth District to vacate the commission’s order. A Tenth District magistrate
recommended that the court deny the writ. 2017-Ohio-5603, ¶ 2. The Tenth
District overruled Tantarelli’s objections and adopted the magistrate’s decision. Id.
at ¶ 10. Though the parties had briefed the issue of res judicata, neither the
magistrate’s decision nor the Tenth District’s opinion analyzed it. The Tenth
District’s decision was based solely on Tantarelli’s failure to establish special




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circumstances justifying deviation from the standard AWW formula. Id. at ¶ 7-9.
Tantarelli filed a timely appeal.
                                    III. ANALYSIS
                              A. Mandamus Standard
        {¶ 12} To be entitled to a writ of mandamus, Tantarelli must show that the
commission abused its discretion when it denied his request to recalculate his
AWW on the basis of special circumstances. See, e.g., State ex rel. FedEx Ground
Package Sys., Inc. v. Indus. Comm., 126 Ohio St.3d 37, 2010-Ohio-2451, 930
N.E.2d 295, ¶ 5, 27. He must make this showing by clear and convincing evidence.
State ex rel. Baker v. Indus. Comm., 143 Ohio St.3d 56, 2015-Ohio-1191, 34 N.E.3d
104, ¶ 12.
                B. Res Judicata Barred Tantarelli’s 2016 Motion
        {¶ 13} Although the parties briefed the issue of res judicata below, the
Tenth District did not substantively address it. We find it to be the dispositive issue.
        {¶ 14} Res judicata precludes “ ‘the relitigation of a point of law or fact that
was at issue in a former action between the same parties and was passed upon by a
court of competent jurisdiction.’ ” State ex rel. Kroger Co. v. Indus. Comm., 80
Ohio St.3d 649, 651, 687 N.E.2d 768 (1998), quoting Consumers’ Counsel v. Pub.
Util. Comm., 16 Ohio St.3d 9, 10, 475 N.E.2d 782 (1985). The principle applies to
proceedings before the commission: a prior final order by the commission can
become res judicata in future proceedings before the commission.                See id.
However, R.C. 4123.52’s grant to the commission of continuing jurisdiction over
the cases before it limits the application of res judicata in commission cases. State
ex rel. B.O.C. Group, Gen. Motors Corp. v. Indus. Comm., 58 Ohio St.3d 199, 200,
569 N.E.2d 496 (1991).
        {¶ 15} Under R.C. 4123.52(A), “[t]he jurisdiction of the industrial
commission * * * over each case is continuing, and the commission may make such
modification or change with respect to former findings or orders with respect



                                           6
                                  January Term, 2019




thereto, as, in its opinion is justified.” However, this continuing jurisdiction is itself
limited and may be invoked only when there is evidence of “(1) new and changed
circumstances, (2) fraud, (3) clear mistake of fact, (4) clear mistake of law, or (5)
error by an inferior tribunal.” State ex rel. Nicholls v. Indus. Comm., 81 Ohio St.3d
454, 458-459, 692 N.E.2d 188 (1998).
        {¶ 16} “Any commission order seeking to exercise continuing jurisdiction
must clearly state which of the five bases it is relying on.” State ex rel. Internatl.
Truck & Engine Corp. v. Indus. Comm., 119 Ohio St.3d 402, 2008-Ohio-4494, 894
N.E.2d 1200, ¶ 16. The commission must both identify and explain the prerequisite
on which it relies. State ex rel. Gobich v. Indus. Comm., 103 Ohio St.3d 585, 2004-
Ohio-5990, 817 N.E.2d 398, ¶ 15. This requirement is “uncompromising,” id. at
¶ 18, and “destroys any assertion that an informal or silent invocation of continuing
jurisdiction can occur,” Internatl. Truck at ¶ 16.
        {¶ 17} Tantarelli’s 2014 motion asked the commission to set his AWW at
$416.58 by dividing his three weeks of earnings from Decapua by the three weeks
he worked there instead of by the standard 52 weeks. Under R.C. 4123.61, the only
possible bases for doing this were “unemployment due to sickness, industrial
depression, strike, lockout, or other cause beyond the employee’s control,” or
“special circumstances under which the [AWW] cannot justly be determined by
applying this section.” We find that Tantarelli’s motion, which did not specify on
which of these bases he relied, placed all of them at issue. See Natl. Amusements,
Inc. v. Springdale, 53 Ohio St.3d 60, 62, 558 N.E.2d 1178 (1990) (“The doctrine
of res judicata requires a plaintiff to present every ground for relief in the first
action, or be forever barred from asserting it”).
        {¶ 18} The commission’s 2014 order considered Tantarelli’s evidence
about his earnings and work history and expressly determined that he had “failed
to establish the existence of ‘special circumstances’ as provided for in Revised
Code 4123.61.” We therefore hold that the commission did not abuse its discretion




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when it concluded in the 2016 order that the issue of special circumstances was
decided in the 2014 order and was therefore res judicata.
        C. The Commission’s Continuing Jurisdiction Was Not Invoked
       {¶ 19} We do not reach the question whether Tantarelli demonstrated
special circumstances under R.C. 4123.61. Although the 2014 order resolved the
special circumstances issue, Tantarelli’s 2016 motion did not seek to invoke the
commission’s continuing jurisdiction under R.C. 4123.52, and the commission’s
2016 order did not identify or explain any of the five bases for exercising continuing
jurisdiction. Therefore, the commission’s continuing jurisdiction over the “special
circumstances” issue was not invoked. See Internatl. Truck, 119 Ohio St.3d 402,
2008-Ohio-4494, 894 N.E.2d 1200, at ¶ 16; Gobich, 103 Ohio St.3d 585, 2004-
Ohio-5990, 817 N.E.2d 398, at ¶ 15.
                                IV. CONCLUSION
       {¶ 20} Because the commission did not abuse its discretion by concluding
that res judicata barred Tantarelli’s motion to recalculate his AWW, we affirm the
Tenth District’s judgment denying Tantarelli’s petition for a writ of mandamus.
                                                                 Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY,
and STEWART, JJ., concur.
                               _________________
       Jurus Law Office and Michael J. Muldoon, for appellant.
       M. Soto Law Office, L.L.C., and Michael Soto, for appellee Decapua
Enterprises, Inc.
       Dave Yost, Attorney General, and Natalie J. Tackett, Assistant Attorney
General, for appellee Industrial Commission.
                               _________________




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