[Cite as State ex rel. DPWN Holdings (USA), Inc. v. Indus. Comm., 2017-Ohio-8148.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT


The State ex rel.                                     :
DPWN Holdings (USA), Inc.,
                                                      :
                Relator,
                                                      :
v.                                                                            No. 16AP-370
                                                      :
Industrial Commission of Ohio                                           (REGULAR CALENDAR)
and                                                   :
Bruce M. Parcell,
                                                      :
                Respondents.
                                                      :



                                          D E C I S I O N

                                   Rendered on October 10, 2017


                On brief: Reminger Co., LPA, Arthur W. Brumett II, and
                Martin T. Galvin, for relator.   Argued: Arthur W.
                Brumett II.

                On brief: Michael DeWine, Attorney General, and Lisa R.
                Miller, and Natalie J. Tackett, for respondent Industrial
                Commission of Ohio. Argued: Natalie J. Tackett.

                On brief: Gallon, Takacs, Boissoneault & Schaffer Co., LPA,
                and Theodore A. Bowman, for respondent Bruce M. Parcell.
                Argued: Theodore A. Bowman.

                                  IN MANDAMUS
                   ON OBJECTIONS TO THE MAGISTRATE'S DECISION

LUPER SCHUSTER, J.
        {¶ 1} Relator, DPWN Holdings (USA), Inc. ("DPWN"), initiated this original
action requesting a writ of mandamus ordering respondent, Industrial Commission of
Ohio ("commission"), to vacate the January 27, 2016 order of its staff hearing officer
No. 16AP-370                                                                             2


("SHO") setting the average weekly wage ("AWW") of respondent, Bruce M. Parcell, at
$771.18 and instead enter an order setting Parcell's AWW at $556.69.
       {¶ 2} This court referred the matter to a magistrate pursuant to Civ.R. 53(C) and
Loc.R. 13(M) of the Tenth District Court of Appeals. The magistrate rendered a decision
that includes findings of fact and conclusions of law. The magistrate's decision, which is
appended hereto, recommends this court grant relator's request for a writ of mandamus
ordering the commission to vacate its January 27, 2016 order and to enter an amended
order that sets the AWW at $563.55. Both the commission and Parcell filed objections to
the magistrate's decision. The matter is now before the court for our independent review.
For the reasons that follow, we sustain the commission's and Parcell's objections, and we
therefore deny the requested writ of mandamus.
       {¶ 3} Because both the commission and Parcell have filed objections to the
magistrate's decision, we must independently review the decision to ascertain whether
"the magistrate has properly determined the factual issues and appropriately applied the
law." Civ.R. 53(D)(4)(d). The commission and Parcell do not challenge the magistrate's
recitation of the pertinent facts; however, both the commission and Parcell object to the
magistrate's conclusion that the commission abused its discretion in finding "special
circumstances" under R.C. 4123.61 when it determined Parcell's AWW to be $771.18.
       {¶ 4} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, the relator must show a clear legal right to the relief
sought and that the commission has a clear legal duty to provide such relief. State ex rel.
Pressley v. Indus. Comm., 11 Ohio St.2d 141 (1967). A clear legal right to a writ of
mandamus exists where the relator shows that the commission abused its discretion by
entering an order which is not supported by any evidence in the record. State ex rel.
Elliott v. Indus. Comm., 26 Ohio St.3d 76 (1986). However, where the record contains
some evidence to support the commission's findings, there has been no abuse of
discretion and mandamus is not appropriate. State ex rel. Lewis v. Diamond Foundry
Co., 29 Ohio St.3d 56 (1987).
       {¶ 5} R.C. 4123.61 provides a standard formula for calculating an injured worker's
AWW, and "[o]rdinarily, AWW is determined by dividing a claimant's earnings for the
year preceding the injury by 52 weeks." State ex rel. Howard v. Indus. Comm., 10th Dist.
No. 16AP-370                                                                            3


No. 08AP-129, 2008-Ohio-5616, ¶ 6. Additionally, R.C. 4123.61 states that "[i]n cases
where there are special circumstances under which the [AWW] cannot justly be
determined by applying this section, the administrator of workers' compensation, in
determining the [AWW] in such cases, shall use such method as will enable the
administrator to do substantial justice to the claimants." Here, the magistrate determined
that the commission abused its discretion in determining Parcell's AWW to be $771.18,
concluding the SHO's January 27, 2016 order does not "set forth a factual and legal basis
for finding special circumstances." (Mag. Decision at ¶ 33.)
       {¶ 6} The magistrate relies almost entirely on this court's decision in Howard to
conclude the commission abused its discretion in finding special circumstances. We agree
with the magistrate that Howard is instructive; however, we disagree with the
magistrate's application of Howard to the pertinent facts in the record.
       {¶ 7} Howard notes that R.C. 4123.61 does not define either "special
circumstances" or "substantial justice," and this court then explores various factors the
commission may consider in finding "special circumstances." Howard at ¶ 7-11. Among
those factors are (1) whether a claimant voluntarily limited his or her hours; (2) "the
underlying factual circumstances surrounding the term of unemployment;" and (3) the
proximity of the claimant's injury to the date the claimant obtained full-time employment.
Though these are among the factors to be considered, Howard is clear that each case
involving an allegation of special circumstances is unique and will depend heavily on the
particular facts of that case. Howard at ¶ 12.
       {¶ 8} In concluding the commission abused its discretion in finding special
circumstances, the magistrate finds "[b]y inference" that Parcell was satisfied with part-
time work while he worked for James Pharmacy, Inc. ("James Pharmacy") and that
Parcell's decision to resign from James Pharmacy "was clearly a lifestyle choice." (Mag.
Decision at ¶ 34.) The magistrate further states that Parcell "can not credibly claim that
the period of unemployment following his resignation from employment at James
Pharmacy was not a consequence of his earlier part-time lifestyle choice." (Mag. Decision
at ¶ 34.) In his review, the magistrate appears to engage in his own evaluation of the
witness' credibility.   However, "questions of credibility and the weight to be given
evidence are clearly within the discretion of the commission to resolve as fact finder."
No. 16AP-370                                                                                  4


State ex rel. Ritzie v. Reece-Campbell, Inc., 10th Dist. No. 13AP-669, 2014-Ohio-2782,
¶ 6, citing State ex rel. Teece v. Indus. Comm., 68 Ohio St.2d 165, 169 (1981).
       {¶ 9} Moreover, even if Parcell's decisions to work part-time for James Pharmacy
and eventually to resign can fairly be characterized as lifestyle choices, we nonetheless
find the commission did not abuse its discretion in finding special circumstances existed
in Parcell's case. As the Supreme Court of Ohio has held, "the purpose of the [AWW] * * *
is 'to "find a fair basis for award for the loss of future compensation." ' " State ex rel. Ohio
State Univ. Hosp. v. Indus. Comm., 118 Ohio St.3d 170, 2008-Ohio-1969, ¶ 6, quoting
State ex rel. Wireman v. Indus. Comm., 49 Ohio St.3d 286, 287 (1990), quoting Riley v.
Indus. Comm., 9 Ohio App.3d 71, 73 (10th Dist.1983). Additionally, the application of
"special circumstances" is appropriate when the AWW set using the standard calculation
"is not a just barometer of the weekly earnings that [the claimant] has lost because of [his
or her] industrial injury." State ex rel. Ohio State Univ. Hosp. at ¶ 17. Though the
magistrate states "it takes time to find a new full-time job," the SHO expressly noted that
Parcell had been unemployed since June 2010 and had only been successful in finding
any employment, with James Pharmacy, in February 2014. The SHO considered both the
reasons Parcell chose the employment with James Pharmacy to begin with and the
reasons why Parcell chose to terminate that employment.
       {¶ 10} The record demonstrates that in the year preceding Parcell's injury, Parcell
worked for James Pharmacy for 9 weeks when he voluntarily resigned his position, was
unemployed for 14 weeks, and worked full-time for DPWN for 29 weeks. In determining
whether the standard calculation of AWW was substantially just, the SHO considered
Parcell's work history both prior to and during the year immediately preceding his injury,
and the record showed a substantial disparity between Parcell's earnings while working
for DPWN and his earnings while working for James Pharmacy. In an effort to provide an
AWW that more closely reflected the weekly earnings that Parcell had lost because of his
industrial injury, the SHO eliminated the 14-week period of unemployment and instead
calculated Parcell's AWW from his combined 38 weeks of employment with both James
Pharmacy and DPWN. The resulting number, $771.18, was still significantly less than the
average amount he earned per week when he actually worked for DPWN, which was
$947.28. Considering both the purposes of the AWW and the case law discussing the
No. 16AP-370                                                                             5


application of "special circumstances," we conclude the SHO had some evidence to
support his decision in both the application of special circumstances and the calculation
of AWW at $771.18. Therefore, we do not adopt the magistrate's analysis regarding the
application of special circumstances. For these reasons, we sustain both Parcell's and the
commission's objections to the magistrate's decision.
      {¶ 11} Following our independent review of the record pursuant to Civ.R. 53, we
find the magistrate erroneously determined that DPWN is entitled to the requested writ of
mandamus. The magistrate properly set forth the pertinent facts and identified the
pertinent law, but the magistrate erroneously applied the law to the salient facts.
Accordingly, we adopt the factual findings of the magistrate, reject the conclusions of law
devolving therefrom, and deny the requested writ.
                                                        Objections sustained; writ denied.

                        TYACK, P.J., and BRUNNER, J., concur.
No. 16AP-370                                                                         6


                                      APPENDIX

                        IN THE COURT OF APPEALS OF OHIO

                            TENTH APPELLATE DISTRICT

The State ex rel.                          :
DPWN Holdings (USA), Inc.,
                                            :
             Relator,
                                            :
v.                                                             No. 16AP-370
                                            :
Industrial Commission of Ohio                              (REGULAR CALENDAR)
and                                         :
Bruce M. Parcell,
                                            :
             Respondents.
                                            :


                        MAGISTRATE'S DECISION

                                Rendered on May 24, 2017


             Reminger Co., LPA, Arthur W. Brumett II, and Martin T.
             Galvin, for relator.

             Michael DeWine, Attorney General, and Lisa R. Miller, for
             respondent Industrial Commission of Ohio.

             Gallon, Takacs, Boissoneault & Schaffer Co., LPA, and
             Theodore A. Bowman, for respondent Bruce M. Parcell.


                                    IN MANDAMUS

      {¶ 12} In this original action, relator, DPWN Holdings (USA), Inc. ("relator" or
"DPWN") requests a writ of mandamus ordering respondent Industrial Commission of
Ohio ("commission") to vacate the January 27, 2016 order of its staff hearing officer
("SHO") that sets the average weekly wage ("AWW") at $771.18 based on the earnings of
respondent, Bruce M. Parcell, during the year prior to the date of injury divided by 38
No. 16AP-370                                                                          7


weeks, and to enter an order that sets AWW at $556.69 based on earnings during the
year prior to the date of injury divided by 52 weeks.
Findings of Fact:
       {¶ 13} 1. On March 9, 2015, Bruce Parcell ("claimant") sustained an industrial
injury while employed as a full-time tractor-trailer driver for relator, a self-insured
employer under Ohio's workers' compensation laws. The industrial claim (No. 15-
812079) is allowed for "sprain, right ankle; right chronic achilles rupture."
       {¶ 14} 2. Earlier, in February 2014, claimant began part-time employment as a
delivery driver for James Pharmacy, Inc. He had been unemployed since June of 2010.
He was employed at an hourly rate and used his personal vehicle to deliver prescription
medications to James Pharmacy customers. He was also reimbursed for miles driven.
       {¶ 15} 3. Claimant continued to work for James Pharmacy through May 10, 2014
when he voluntarily resigned his position as a delivery driver.
       {¶ 16} 4. Claimant remained unemployed for an approximate 14-week period
until he began employment with DPWN on August 18, 2014 as a full-time tractor-trailer
driver. Claimant continued to work for DPWN until his industrial injury of March 9,
2015. Claimant was employed with DPWN for a 29-week period up to his date of injury.
       {¶ 17} 5. As a self-insured employer, DPWN calculated AWW at $556.69.
DPWN's calculation sheets of record show that claimant was employed at DPWN for 29
weeks and at James Pharmacy for 9 weeks during the year prior to the date of injury.
Thus, claimant was employed a total of 38 weeks during the year prior to the date of
injury. He was unemployed for 14 weeks.
       {¶ 18} 6. DPWN's calculation sheets show that claimant earned a total of
$28,947.85 during the year prior to the date of injury. That figure includes earnings at
both James Pharmacy and DPWN. DPWN divided total earnings by 52 weeks to obtain
AWW at $556.69 ($28,947.85 ÷ 52= $556.69).
       {¶ 19} 7. DPWN's calculation sheets also show that the highest weekly amount
claimant earned at DPWN was $1,145.90 on February 22, 2015. The lowest weekly
amount claimant earned at DPWN was $710.65 on September 7, 2014.
No. 16AP-370                                                                           8


      {¶ 20} 8. On October 9, 2015, claimant moved that his AWW be reset at $771.18.
In support, claimant submitted a calculation sheet produced by the law firm
representing claimant, i.e., Gallon, Takacs, Boissoneault & Schaffer Co., LPA ("Gallon").
The Gallon calculation sheet shows that claimant earned a total of $29,304.70 during
the year prior to the date of injury while employed with DPWN and James Pharmacy.
That figure is divided by 52 weeks for an AWW calculation of $563.55.
      {¶ 21} 9. Claimant also submitted a C-94-A Wage Statement from James
Pharmacy showing that, during the nine-week period, claimant earned a total of
$1,832.60 at James Pharmacy.
      {¶ 22} 10. In further support of his October 9, 2015 motion, claimant submitted a
single-page document captioned "Affidavit." However, the document of record fails to
show that the document was executed by claimant and notarized. The document states:
             I, Bruce Parcell, do state the following is true and accurate to
             the best of my knowledge.

             I sustained an industrial injury on March 9, 2015. This
             affidavit is to outline my employment during the year prior
             to my industrial injury.

             From March 9, 2014 through May 11, 2014 I was employed
             as a part-time delivery driver for James Pharmacy.
             Unfortunately, the pay was not sufficient enough to make the
             job worthwhile, especially given the wear and tear that was
             put on my own vehicle. From May 12, 2014 through
             August 17, 2014 I was out of the work force actively seeking
             employment. I was successful in finding employment with
             the instant employer where I began working August 18, 2014
             and continued up until the time I was injured.

             At this time, I respectfully request that my average weekly
             wage be recalculated and that the 14 weeks where I had no
             earnings be excluded from the calculation. I request that my
             total earnings of $29,304.70 be averaged over the 38 weeks I
             worked and that my average weekly wage be reset at $771.18.
             I believe this figure best reflects my earning capacity at the
             time of the industrial injury.

             Further, affiant sayeth naught.
No. 16AP-370                                                                       9


        {¶ 23} 11. Following a December 14, 2015 hearing, a district hearing officer
("DHO") issued an order denying claimant's motion to reset his AWW. The DHO's
order explains:
              The Hearing Officer orders the average weekly wage to
              remain as set by the Self-Insuring Employer at $556.69.

              The Injured Worker testified, and his affidavit reflects, that
              he was looking for work while working his part-time job.
              However, on 05/11/2014 he voluntarily resigned from that
              part-time position, prior to obtaining another position. The
              Injured Worker testified, and it is reflected in his affidavit,
              that he felt the part-time pay was not sufficient to make the
              job worthwhile, especially given the wear and tear it put on
              his vehicle. Therefore, there is no dispute the Injured
              Worker's lac[k] of work beginning 05/11/2014, until he was
              hired 08/18/2014, by another company, was the Injured
              Worker's choice and not beyond his control.

              Therefore, Hearing Officer finds that the above wage rate []
              is reasonable and affords substantial justice to the Injured
              Worker.

              The Hearing Officer notes that the Injured Worker's period
              of unemployment was not beyond his control. Therefore it
              would be inappropriate to exclude those weeks from the
              wage calculation. The Hearing Officer does not find sufficient
              circumstances to warrant a special circumstances
              recalculation of the rate.

              The Hearing Officer finds the average weekly wage remains
              as set at $556.69.

              The Self-Insuring Employer is hereby ordered to comply
              with the above findings.

        {¶ 24} 12. Claimant administratively appealed the DHO's order of December 14,
2015.
        {¶ 25} 13. Following a January 27, 2016 hearing, an SHO issued an order that
vacates the DHO's order of December 14, 2015, grants claimant's motion, and resets
AWW at $771.18. The SHO's order of January 27, 2016 explains:
              The Injured Worker's C-86 Motion, filed 10/09/2015,
              requests that the Injured Worker's Average Weekly Wage be
No. 16AP-370                                                               10


           reset at the figure of $771.18, which is an increase from the
           setting of the Average Weekly Wage made by the Self-
           Insuring Employer at $556.69.

           ***

           Ohio Revised Code Section [4]123.61 provides the basis for
           calculating the Average Weekly Wage. That section provides,
           in pertinent part, that "The claimant's … Average Weekly
           Wage for the year preceding the injury or the date of the
           disability due to the occupational disease begins is the
           weekly wage upon which compensation shall be based. 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 cause beyond the employee's control shall be
           eliminated.

           The Injured Worker is requesting that the period of weeks
           from 05/12/2014 through 08/17/2014 be eliminated when
           calculating the Average Weekly Wage.

           The Injured Worker's testimony at hearing, on Wednesday
           01/27/2016, indicates that he had been unemployed since
           June of 2010, and had just obtained part-time employment
           as a delivery driver for James Pharmacy, Incorporated, on
           Lagrange Street in Toledo, Ohio, in February of 2014. He
           continued working that job through 05/10/2014. He was
           paid an hourly wage plus a per miles driven rate for the use
           of his personal vehicle when he delivered the prescriptions.
           His average weekly earnings, while working for James
           Pharmacy during the period from 03/09/2014 through
           05/10/2014, was $183.26 per week. He testified that he did
           not believe that the amount of weekly earnings from James
           Pharmacy made the job "worthwhile." One of his reasons was
           because of the wear-and-tear that he had to put on his own
           personal vehicle. Furthermore, he testified that the area
           served by James Pharmacy was an inner-city area in a high
           crime area, which was yet another reason he did not want to
           continue that part-time employment. Therefore, the Injured
           Worker terminated his employment with James Pharmacy as
           of 05/10/2014, and he then began a full-time search for
           other employment.
No. 16AP-370                                                                  11


           The Injured Worker then began employment with Deutshe
           Post World Net (DPWN) Holdings (USA), Incorporated,
           doing business as Exel, Incorporated, on 08/18/2014. He
           was hired as a full-time tractor-trailer driver, pulling a 48
           foot trailer. His job involved unloading and delivering auto
           parts to seven dealers in the State of Michigan. That position
           was a full-time permanent position. He still remains an
           employee and hopes to return to that former position of
           employment.

           It is the finding of this Staff Hearing Officer that the Injured
           Worker's period of unemployment, from 05/11/2014 through
           08/17/2014, was not due to "sickness, industrial depression,
           strike, lock-out, or other cause beyond the employee's
           control" (emphasis added) and, therefore, shall not be
           eliminated pursuant to the above-cited exception in regard to
           the calculation of the Average Weekly Wage pursuant to
           Ohio Revised Code Section 4123.61

           However, there is a second exception, under Ohio Revised
           Code Section 4123.61 which provides, in pertinent part, that
           "in cases where there are special circumstances under which
           the Average Weekly Wage cannot justly be determined by
           applying this section, the Commission… shall use such
           method as will enable it to do substantial justice to the
           claimants."

           The Court of Appeals of Ohio previously addressed the issue
           of such an exception for an employee who had a voluntary
           period of employment, in the case of State ex rel. Exel
           Logistics, Incorporated v. Industrial Commission, 2004-
           Ohio-3594. In the Exel Logistics case, the Court of Appeals
           quoted the prior case of Riley v. Industrial Commission
           (1983), 9 Ohio App.3d, and specifically held that, "Even
           where the period of employment before the new job was
           voluntary, the worker may qualify for the 'special
           circumstances' exception, depending on the circumstances."
           The Court of Appeals then went on to further quote from the
           Riley case and stated that the evidence showed that, "There
           is no indication that relator did not intend to work regularly
           in the future; in fact, the evidence is all to the contrary."

           Furthermore, the Ohio Supreme Court, in the case of State
           ex rel. Ohio State University Hospital v. Industrial
           Commission, 118 Ohio St.3d 170, held that the "special
           circumstances" provision of Ohio Revised Code Section
No. 16AP-370                                                                     12


             4123.61 applied to the facts in that case, because "the figure
             obtained by application of the standard formula did not
             fairly represent the wages the claimant lost due to her
             injury." The Ohio Supreme Court, in the Ohio State
             University Hospital case also referred to the Riley case and
             stated that the application of the standard formula for
             calculating the Average Weekly Wage was, "obviously an
             unjust barometer of relator's prospective future average
             wages that would be lost if he could not work."

             Likewise, in the instant case, the standard calculation of the
             Average Weekly Wage results in a setting of the Average
             Weekly Wage at the figure of $563.55. The least amount that
             the Injured Worker earned with the Employer of Record was
             $710.65 for the week ending 09/07/2014, and he had earned
             as much as $1,145.90 during the week ending 02/22/2015.
             Thus, the Injured Worker averaged $947.28 for the 29 weeks
             that he worked for Deutshe Post World Net (DPWN)
             Holdings (USA), Incorporated prior to the recognized date of
             injury of 03/09/2015.

             Thus, it is the finding of this Staff Hearing Officer that the
             current setting of the Average Weekly Wage at the figure of
             $563.55 is not substantially just, since that figure is $383.73
             less than the Injured Worker's average earnings with the
             Employer of Record.

             Thus, on the authority of the cases cited above, it is the
             finding of this Staff Hearing Officer that the Injured Worker
             has met his burden of demonstrating that special
             circumstances exist in the instant claim which render the
             usual calculation of the Average Weekly Wage as an unjust
             method of determining his Average Weekly Wage.

             Therefore, it is the order of this Staff Hearing Officer that the
             Injured Worker's Average Weekly Wage is hereby set at the
             figure of $771.18, based upon the Injured Worker's earnings
             of $29,304.70 for the 52 weeks prior to his date of injury of
             03/09/2015, and dividing by 38 weeks actually worked
             (eliminating 14 weeks of unemployment from the
             calculation), based upon the "special circumstances"
             provision of Ohio Revised Code Section 4123.61.

(Emphasis sic.)
No. 16AP-370                                                                             13


       {¶ 26} 14. On February 23, 2016, another SHO mailed an order refusing relator's
administrative appeal from the SHO's order of January 27, 2016.
       {¶ 27} 15. On March 22, 2016, the three-member commission mailed an order
that denies relator's motion for reconsideration.
       {¶ 28} 16. On May 13, 2016, relator, DPWN Holdings (USA), Inc., filed this
mandamus action.
Conclusions of Law:
       {¶ 29} The issue is whether the commission abused its discretion in setting AWW
at $771.18 by dividing claimant's earnings during the year prior to the date of injury by
38 weeks based on a finding of special circumstances.
       {¶ 30} Finding that the commission abused its discretion in finding special
circumstances that justifies elimination of 14 weeks of unemployment during the year
prior to the date of injury, it is the magistrate's decision that this court issue a writ of
mandamus, as more fully explained below.
       {¶ 31} R.C. 4123.61 provides:
              The average weekly wage of an injured employee at the time
              of the injury * * * is the basis upon which to compute
              benefits.

              ***

              [T]he claimant’s * * * average weekly wage for the year
              preceding the injury * * * is the weekly wage upon which
              compensation shall be based. In ascertaining the average
              weekly wage for the year previous to the injury, * * * any
              period of unemployment due to sickness, industrial
              depression, strike, lockout, or other cause beyond the
              employee’s control shall be eliminated.

              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.
No. 16AP-370                                                                           14


      {¶ 32} In State ex rel. Howard v. Indus. Comm., 10th Dist. No. 08AP-129, 2008-
Ohio-5616, this court had occasion to analyze the pertinent case law that defines "special
circumstances" and "substantial justice." Howard is instructive here, and it states:
             As "special circumstances" and "substantial justice" are not
             defined, we must turn to case law to compare relator's
             circumstances to those of others who have been granted or
             denied an adjustment to the standard AWW calculation
             based upon special circumstances or a lack thereof. The
             "special circumstances" exception found in R.C. 4123.61 has
             been used when the wages earned prior to the injury do not
             reflect the claimant's earnings at the time of the injury and
             has generally been confined to uncommon situations
             involving the claimant's age, education, and background. See
             State ex rel. Wireman v. Indus. Comm. (1990), 49 Ohio
             St.3d 286, 288, 551 N.E.2d 1265. Both relator and the
             commission, here, rely largely on the same three cases to
             support their opposing positions, although each interprets
             them differently. In State ex rel. Ohio State Univ. Hosp. v.
             Indus. Comm., 118 Ohio St.3d 170, 2008 Ohio 1969, 887
             N.E.2d 325, the injured worker had graduated in June 2003
             from a radiology technology program and began working full
             time at the Ohio State University Hospital ("OSU"), but was
             injured soon after commencing work in September 2003.
             The year prior to her injury, she had had taken a part-time
             job at a low wage while she recovered from an injury, and
             then she abandoned the work force to re-enroll in school.
             The commission granted her an adjusted AWW based upon
             special circumstances. Citing two cases, Riley, supra, and
             State ex rel. Clark v. Indus. Comm. (1994), 69 Ohio St.3d
             563, 1994 Ohio 396, 634 N.E.2d 1014, the Ohio Supreme
             Court found that special circumstances warranted a
             departure from the standard calculation because it was the
             injured worker's first time in the full-time work force, and
             the work force entrance followed a period of specialized
             education and training in a field with enhanced income and
             career potential. Ohio State Univ. Hosp., at ¶ 17. Under these
             circumstances, found the court in Ohio State Univ. Hosp.,
             the AWW using the standard calculation was not a just
             barometer of the weekly earnings that the injured worker
             lost because of her industrial injury. Id.

             In Riley, an employee began a full-time job after a period
             during which he chose not to work because he had other
             income. After returning to the labor market, he was injured
No. 16AP-370                                                                 15


           after three weeks at the new job. The evidence indicated,
           however, that the injured worker would have continued to be
           employed in his job and would have continued to earn his
           same salary. This court found no indication that the worker
           did not intend to work regularly in the future. Thus, this
           court found special circumstances existed to depart from the
           standard calculation under R.C. 4123.61.

           In Clark, the Ohio Supreme Court found that, even though
           the claimant's reduced hours were voluntarily undertaken,
           "special circumstances" existed. The court explained that,
           even when a claimant has voluntarily limited her hours, the
           commission must inquire further to determine if "special
           circumstances" exist. In Clark, the claimant had left full-time
           work to care for her granddaughter who suffered severe
           psychiatric problems. When her granddaughter's situation
           changed, the claimant re-entered the work force and worked
           at a restaurant a few hours per week to see how her
           granddaughter would adjust to her absence. She was injured
           during her first month of employment. After her injury, she
           obtained full-time employment, where she earned
           substantially more per week than at the restaurant. The court
           found that "special circumstances" existed and that
           substantial justice would not be done, in that case, if the
           standard formula was applied.

           Relator contends that the special circumstance found in
           Riley was not that the claimant had other income that
           allowed him not to work in the year prior to the injury, as the
           commission contends but, rather, that the claimant first
           became employed only three weeks before the injury.
           Likewise, with regard to Clark, relator contends that the
           special circumstance was the proximity of the claimant's date
           of injury to her re-entry into the work force, rather than the
           fact that the claimant had been forced from the work force
           for the year prior to the injury in order to get custody of her
           abused granddaughter, as the commission asserts. Similarly,
           with regard to Ohio State Univ. Hosp., relator contends that
           the special situation was an injury that quickly followed an
           entry into the work force, and not the fact that the claimant
           entered into full-time work after a period of specialized
           education and training in a field that enhanced her income
           potential, as the commission asserts. Thus, relator insists
           that the special circumstance in all of the above cases is the
           same as hers, i.e., an injury quickly following a re-entry into
No. 16AP-370                                                                   16


           the work force after an extended absence, and the
           commission did not need to look any further than this fact.

           Initially, we agree with relator that both Riley and Clark
           suggest that the special circumstance in those cases was an
           injury quickly following a re-entry into the work force after
           an extended absence. Although both cases involved factual
           backgrounds that provided unique circumstances, and
           although the Ohio Supreme Court and this court both
           endeavored to point out and discuss those backgrounds, the
           actual conclusions in those cases mention only the close
           proximity of the injury to the commencement of the job. For
           example, in Clark, the court stated, "[i]n Riley, supra, the
           proximity of the claimant's date of injury to his reentry into
           the work force constituted a 'special circumstance.' We find
           the same to exist in this case." Clark, at 565. In Riley, this
           court stated, "[t]he fact that relator first became employed
           only three weeks before the injury clearly constitutes a
           special circumstance since the average weekly wage is
           established to find a fair basis for award for the loss of future
           compensation." Riley, at 73.

           However, we are unable to decisively conclude herein that
           the close proximity of the injury to the start of employment
           was the sole reason for finding special circumstances in these
           cases. As mentioned above, in Riley and Clark, this court and
           the Ohio Supreme Court specifically endeavored to detail the
           reasons underlying the absence from the work force for the
           prior year. Particularly, with regard to our decision in Riley,
           we pointed out, "[t]he unusual circumstances shown by
           relator were that, because of other income, he had no need to
           work and did not work for forty-nine of the fifty-two
           previous weeks. There is no indication that relator did not
           intend to work regularly in the future; in fact, the evidence is
           all to the contrary." Riley, at 72. Thus, it is arguable that the
           underlying factual circumstances surrounding the term of
           unemployment also played into our final conclusion in Riley
           that special circumstances existed.

           In Ohio State Univ. Hosp., it is even more apparent that the
           Ohio Supreme Court based its finding of special
           circumstances not only upon the unusually short period of
           employment prior to the injury, but, also, upon the reasons
           underlying the term of unemployment in the year prior to
           the injury. In that case, the staff hearing officer ("SHO")
           concluded:
No. 16AP-370                                                                17


           Claimant testified that she was recruited by OSU in June
           2000 for a job upon graduation from Wheeling Hospital's
           radiological technician program for a full-time position
           paying $ 16.45 per hour. Claimant further testified that due
           to an injury she had to interrupt her schooling in 09/2001
           and took whatever work was available in the vicinity-and
           could only work part-time until she resumed her education,
           graduated, and moved to OSU to the job for which she had
           been recruited.

           The Staff Hearing Officer finds such sequence of events to
           constitute special circumstances requiring an alternative
           means of setting the average weekly wage. * * *

           (Emphasis added.) Ohio State Univ. Hosp., at ¶ 9-10. The
           Ohio Supreme Court reiterated the unusual underlying
           circumstances in affirming the decision of the DHO:

           We affirmed the Riley position in Clark and are guided by
           that reasoning in this case. This was not Burns's first foray
           into the workforce, but it certainly appears to be her first
           time in the full-time workforce. This workforce entrance,
           moreover, followed a period of specialized education and
           training in a field with enhanced income and career
           potential. Burns's efforts were rewarded when she was hired
           by OSU Hospital. Under these circumstances, the average
           weekly wage set by the bureau using the standard calculation
           is not a just barometer of the weekly earnings that Burns has
           lost because of her industrial injury.

           (Emphasis added.) Id., at ¶ 17. Thus, it is apparent from the
           preceding that, in addition to the short period between re-
           entry into the work force and the injury, the Ohio Supreme
           Court found special circumstances existed that made the
           usual calculation method for AWW substantially unjust
           because the claimant had just re-entered the work force after
           a period of specialized education and training to enhance her
           income and career potential.

           Here, relator asserted that her unemployment from August
           2005 to May 2006 should be excluded from the calculation
           of AWW because her absence from the work force during this
           period was due to her decision to stay at home to care for her
           children. We agree with the commission that this reason
           alone is not compelling enough to warrant "special
           circumstances." The Ohio Supreme Court has "decisively
No. 16AP-370                                                                            18


              declared that workers' compensation benefits are not
              intended to subsidize lifestyle choices." State ex rel. Baker
              Concrete Constr., Inc. v. Indus. Comm., 102 Ohio St.3d 149,
              2004 Ohio 2114, at ¶ 18, 807 N.E.2d 347. For example, the
              Ohio Supreme Court has declined to award impaired earning
              capacity benefits to a claimant who left the labor market to
              stay home with her children. Id., citing State ex rel. Pauley v.
              Indus. Comm. (1990), 53 Ohio St.3d 263, 559 N.E.2d 1333.
              In Baker, the court noted that the phrase "lifestyle choice" is
              also relevant in calculating AWW. Id. The court concluded in
              Baker, if unemployment springs from a lifestyle choice, then
              those weeks of unemployment are not beyond a claimant's
              control and omitting those weeks from the AWW contradicts
              both the statute and case law. Id. Therefore, Baker supports
              a finding that relator's unemployment due to her voluntary
              decision to stay home with her children was a lifestyle choice
              that should not provide her a windfall when calculating her
              AWW.

(Emphasis sic.) Id. at ¶ 7-14.

       {¶ 33} Clearly, the SHO's order of January 27, 2016 fails to set forth a factual and
legal basis for finding special circumstances. Therefore, the SHO's determination that
AWW is $771.18 must be vacated.
       {¶ 34} Analysis begins with the observation that claimant does not claim that he
was searching for full-time work while employed part-time as a delivery driver for
James Pharmacy. Rather, he only claims that he was searching for employment during
the 14-week period of unemployment. That is, in his so-called affidavit, claimant avers
"[f]rom May 12, 2014 through August 17, 2014 I was out of the work force actively
seeking employment." By inference, claimant indicates that he was satisfied with part-
time work although he was concerned about the wear and tear on his vehicle. Thus,
claimant's part-time employment at James Pharmacy was clearly a lifestyle choice.
Given the lifestyle choice while employed part-time, claimant can not credibly claim that
the period of unemployment following his resignation from employment at James
Pharmacy was not a consequence of his earlier part-time lifestyle choice. Simply put, it
takes time to find a new full-time job.
       {¶ 35} Given this analysis, it was clearly an abuse of discretion for the
commission to find "special circumstances" under R.C. 4123.61.
No. 16AP-370                                                                           19


       {¶ 36} It can be further observed that the SHO relied on the Gallon calculation
sheet showing that claimant earned a total of $29,304.70 during the year prior to the
date of injury. Thus, it can be said that the SHO did not accept DPWN's calculation
sheet showing that claimant earned $28,947.85 during the year prior to the date of
injury. As earlier noted, DPWN determined that AWW is $556.69 by dividing total
earnings for the year prior to the date of injury by 52 weeks.
       {¶ 37} Given that the SHO accepted the Gallon calculation sheet showing that
claimant earned a total of $29,304.70 during the year prior to the date of injury, the
SHO should have entered a finding that AWW is set at $563.55.
       {¶ 38} Accordingly, it is the magistrate's decision that this court issue a writ of
mandamus ordering the commission to vacate the finding of special circumstances in
the SHO's order of January 27, 2016, and to enter an amended order that sets AWW at
$563.55.


                                              /S/ MAGISTRATE
                                              KENNETH W. MACKE



                              NOTICE TO THE PARTIES

              Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign as
              error on appeal the court's adoption of any factual finding or
              legal conclusion, whether or not specifically designated as a
              finding of fact or conclusion of law under Civ.R.
              53(D)(3)(a)(ii), unless the party timely and specifically objects
              to that factual finding or legal conclusion as required by Civ.R.
              53(D)(3)(b).
