[Cite as State ex rel. Gunter v. Indus. Comm., 2017-Ohio-1571.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio ex rel. Calvin Gunter,                   :

                 Relator,                              :

v.                                                     :                         No. 15AP-562

Industrial Commission of Ohio,                         :                  (REGULAR CALENDAR)
and Eclipse Advantage LLC,
                                                       :
                 Respondents.
                                                       :


                                           D E C I S I O N

                                      Rendered on April 27, 2017


                 On brief: Gruhin & Gruhin, LLC, and Michael H. Gruhin,
                 for relator.

                 On brief: Michael DeWine, Attorney General, and John
                 Smart, for respondent Industrial Commission of Ohio.

                                   IN MANDAMUS
                       ON OBJECTIONS TO MAGISTRATE'S DECISION
BRUNNER, J.
        {¶ 1} Relator, Calvin Gunter, has filed this original action requesting this Court to
issue a writ of mandamus ordering respondent, Industrial Commission of Ohio ("the
commission"), to vacate its order mailed August 1, 2013 setting his average weekly wage
("AWW") at $242.41, to order that his AWW should be set at or near $503.64
(incorporating income earned from the sale of used cars1), and to adjust all previously
paid benefits accordingly.




1 The magistrate's decision notes that Gunter in his brief asks this Court to order the commission to reset his

AWW "at a minimum of $503.64 pursuant to the standard formula taking into account his net business
earnings" or, in the alternative, "at a minimum of $400.00, in accord with the May 28, 2013, DHO
determination utilizing to special circumstances." (Sept. 16, 2015 Gunter's Brief at 24.)
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15AP-562
       {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, we referred this matter to a magistrate, who issued the appended decision,
including findings of fact and conclusions of law. The magistrate found that Gunter had
not demonstrated that the commission abused its discretion in denying his request for
reconsideration. Consequently, the magistrate finds that this Court should deny Gunter's
request for a writ of mandamus.
       {¶ 3} Gunter has filed objections to the magistrate's conclusions of law.
       {¶ 4} After an examination of the magistrate's decision, an independent review of
the record pursuant to Civ.R. 53, and due consideration of the objections, we overrule
Gunter's objections and adopt the magistrate's findings of fact and conclusions of law as
our own. Because we find that the commission did not abuse its discretion, we deny
Gunter's request for a writ of mandamus.
I. FACTS AND PROCEDURAL HISTORY
       {¶ 5} On November 15, 2012, Gunter sustained an injury in the course of his
employment with respondent, Eclipse Advantage LLC ("Eclipse"). Gunter had worked
only ten hours when he was injured. His claim was allowed, and he filed for temporary
total compensation ("TTC") with the Ohio Bureau of Workers' Compensation ("BWC").
       {¶ 6} On January 22, 2013, Gunter filed a motion asking that his full weekly wage
("FWW") and AWW be set at $400. On March 12, 2013, BWC set the AWW at $159.88
based on information in the file. Gunter appealed, arguing that the AWW should be
higher.
       {¶ 7} On May 15, 2013, Gunter filed an amended motion providing additional
information in anticipation of the district-level hearing set for May 28, 2013 on the issue
of his AWW. Gunter requested that his AWW be set at not less than $819.45, an amount
incorporating self-employment income of $16,000 from selling used cars in the year
before his injury. Additionally, he asserted that he would have earned $400 per week
working for Eclipse.    Gunter provided pay stubs, unemployment statements, his tax
returns for 2011 and 2013, and his own calculations. Gunter withdrew this motion but not
the evidence attached to it after the May 28, 2013 district level hearing.
       {¶ 8} A district hearing officer ("DHO") heard Gunter's appeal on May 28, 2013.
By order mailed June 1, 2013, the DHO vacated BWC's March 12, 2013 order and granted
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15AP-562
Gunter's motion of January 22, 2013, setting the AWW at $4000, which the DHO stated
was the weekly amount Gunter would have earned at Eclipse.
       {¶ 9} On June 14, 2013, Gunter appealed the DHO's June 1, 2013 order setting
the AWW at $400.
       {¶ 10} A staff hearing officer ("SHO") heard Gunter's appeal of the DHO's order.
By order mailed August 1, 2013, the SHO vacated the DHO's order and reset the AWW at
$242.41. The SHO found that Gunter, in the one-year period prior to his injury, had
worked 27.57 weeks and had received wages in the amount of $6,683.25. The SHO
computed the AWW by dividing the $6,683.25 by 27.57. The SHO specifically rejected
Gunter's request to include in the AWW computation the $16,000 in self-employment
income he claimed from selling used cars in the year before his injury. The SHO found
that the business income Gunter had reported on his 2011 and 2012 tax returns did not
account for business expenses associated with the purchase and sale of the motor vehicles,
and thus did not provide "an accurate reflection of earnings received for his efforts."
(Aug. 26, 2015 Stipulation of Evidence at 87.) The SHO determined that incorporating
the self-employment income figures into Gunter's AWW calculation "would artificially
increase the resulting [AWW] figure and result in a windfall to [Gunter]." Id. The SHO
determined that the AWW computation of $242.41 was appropriate in Gunter's claim and
ordered all prior compensation be adjusted accordingly. The SHO stated the order was
based on information in the file, specifically Gunter's wage information, unemployment
compensation records, and his 2011 and 2012 tax returns. The SHO also stated that he
had considered the statements from the purchasers of the used cars Gunter had sold.
       {¶ 11} On August 14, 2013, Gunter appealed the SHO's order, arguing that the
SHO had committed mistakes of fact and law in setting the AWW and FWW by
acknowledging but not utilizing the self-employment wages Gunter had presented.
Gunter also argued there was "new evidence" to validate his self-employment income as
"appropriate to include in the AWW calculation." (Emphasis omitted.) (Stipulation of
Evidence at 93.) Gunter's new evidence included his affidavit executed on August 12,
2013, that provided information regarding the used car sales he had transacted in the one-
year period before his injury.
                                                                                            4
15AP-562
       {¶ 12} The commission denied both Gunter's appeal of the SHO's order and his
request for reconsideration of the order.
       {¶ 13} Gunter initiated this action against the commission on June 30, 2015. The
commission timely answered Gunter's amended complaint and asserted that Gunter has
no clear legal right to the relief sought.
       {¶ 14} The magistrate concluded that Gunter bore the burden of presenting
evidence from which the commission could properly calculate his AWW and, to the extent
that Gunter failed to present that evidence, he failed to meet his burden. The magistrate
further concluded that it was neither an abuse of discretion nor a clear mistake of law or
fact for the SHO to calculate the AWW using evidence Gunter had provided as of the
hearing date. The magistrate found that the commission was not required to grant
Gunter's appeal from the SHO's decision because such appeals are discretionary, and the
commission did not abuse its discretion by refusing "to grant an appeal or reconsideration
when [Gunter] failed to present the proper evidence from which the SHO, at hearing,
determined his AWW." (App'x at ¶ 44.)
II. OBJECTIONS TO THE MAGISTRATE'S DECISION
       {¶ 15} Gunter presents for our review two objections to the magistrate's decision:
               [1.] The Magistrate erred when she concluded that the
               Industrial Commission set Relator's average weekly wage
               ("AWW") in an amount that provides substantial justice in
               contravention of the requirements of O.R.C. 4123.61 and Ohio
               case law, which provides that the setting of the AWW is to
               place an Injured Worker in as similar a financial position as
               he/she would have been if he/she were still working, but for
               the industrial injury.

               [2.] The Magistrate erred when she concluded that the
               Industrial Commission was not required to accept Relator's
               third level appeal from the staff level in order to consider
               supplemental evidence submitted with the appeal which
               clarified the self-employment business income/expense
               information that already was present in the claim file at the
               staff hearing level.
III. DISCUSSION
       {¶ 16} To be entitled to relief in mandamus, Gunter must establish that he has a
clear legal right to relief, 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), paragraph nine of
                                                                                            5
15AP-562
the syllabus.   To do so, Gunter must demonstrate that the commission abused its
discretion, and "in this context, abuse of discretion has been repeatedly defined as a
showing that the commission's decision was rendered without some evidence to support
it." State ex rel. Burley v. Coil Packing, Inc., 31 Ohio St.3d 18, 20 (1987). To be successful
in this mandamus action, he must show that the commission's decision is not supported
by some evidence in the record. State ex rel. Elliott v. Indus. Comm., 26 Ohio St.3d 76
(1986).    Conversely, 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). And
questions of credibility and the weight to be given evidence are clearly within the
discretion of the commission as the fact finder. State ex rel. Teece v. Indus. Comm., 68
Ohio St.2d 165 (1981).
       {¶ 17} Gunter argues that the commission abused its discretion in four instances.
Gunter first argues that the commission's SHO set the AWW by applying the standard
formula improperly and declining to apply the special circumstances provision. Second,
Gunter argues that the commission's SHO did not sua sponte hold the issue of AWW in
abeyance to allow Gunter opportunity to present additional evidence regarding his self-
employment income. Third, Gunter argues that the commission refused to hear his
appeal and to consider "newly available" evidence regarding his self-employment income.
Fourth, Gunter argues that the commission acted contrary to R.C. 4123.61 in determining
the AWW without including all of Gunter's income earned in the year before his injury.
The arguments Gunter presents in his objections are the same arguments that were
presented to and rejected by this Court's magistrate. We agree with the magistrate and do
not find merit in those arguments.
       {¶ 18} The magistrate's decision includes a comprehensive discussion of the
statutory and case law regarding the computation of AWW. The magistrate's decision
takes into account this Court's decision in State ex rel. Zingales v. Indus. Comm., 10th
Dist. No. 08AP-643, 2009-Ohio-1860, in which we held that the calculation of AWW
should be based on a claimant's net income following deductions from gross income. To
do otherwise would result in a windfall for the claimant. Id.
                                                                                           6
15AP-562
       {¶ 19} The magistrate found that the SHO did not abuse his discretion in rejecting
Gunter's evidence about his self-employment income. The SHO reviewed and considered
all the evidence Gunter had provided at the time of the hearing, including the tax returns
on which Gunter had reported his self-employment income. The SHO's August 1, 2013
order explained the formula used to calculate Gunter's AWW. The order also described
Gunter's evidence concerning self-employment income from used car sales in 2011 and
2012 with the explanation that those income figures did not reflect actual earnings, such
that including them into Gunter's AWW calculation would create for him a windfall.
       {¶ 20} The magistrate determined that the SHO was not required to set Gunter's
AWW at $400, as the DHO had.                Gunter himself appealed the $400 AWW
administratively and asked that his AWW be set at $819.45. In his complaint, he asks this
Court to set his AWW "at or near $503.64." (June 30, 2015 Am. Compl. at 4.) In light of
the record, Gunter has not properly raised before the commission or this Court his claim
to a $400 AWW.
       {¶ 21} The magistrate correctly concluded that the commission was not required to
accept Gunter's third-level appeal in order to consider newly available evidence about his
self-employment business income/expenses. The record before us indicates that Gunter
had the information at the time of the district and staff level hearings, but he did not seek
to present it until he appealed the SHO's order. As such, the evidence could be more
accurately characterized as newly provided, rather than newly available. The burden was
on Gunter to provide that evidence in time for consideration at the hearings, and he did
not successfully or timely carry it.
IV. CONCLUSION
       {¶ 22} Upon review of the magistrate's decision, an independent review of the
record, and due consideration of Gunter's objections, we find the magistrate has properly
stated the pertinent facts and applied the appropriate law.         Therefore, we overrule
Gunter's objection to the magistrate's decision and adopt the decision as our own,
including the findings of facts and conclusions of law therein. In accordance with the
magistrate's decision, the requested writ of mandamus is denied.
                                                                    7
15AP-562
                                                  Objection overruled;
                                            writ of mandamus denied.

           BROWN and LUPER SCHUSTER, JJ., concur.
                                                                                       8
15AP-562
                                        APPENDIX


                         IN THE COURT OF APPEALS OF OHIO

                             TENTH APPELLATE DISTRICT

State of Ohio ex rel. Calvin Gunter,        :

              Relator,                      :

v.                                          :                    No. 15AP-562

Industrial Commission of Ohio,              :              (REGULAR CALENDAR)
and Eclipse Advantage LLC,
                                            :
              Respondents.
                                            :



                         MAGISTRATE'S DECISION

                             Rendered on February 25, 2016



              Gruhin & Gruhin, LLC, and Michael H. Gruhin, for relator.

              Michael DeWine, Attorney General, and John Smart, for
              respondent Industrial Commission of Ohio.


                                       IN MANDAMUS

       {¶ 23} Relator, Calvin Gunter, has filed this original action requesting that this
court issue a writ of mandamus ordering respondent, Industrial Commission of Ohio
("commission"), to vacate its order which set his average weekly wage ("AWW") at
$242.41, and ordering the commission to redetermine his AWW as follows:
              1) [T]hat his AWW be set at a minimum of $503.64 pursuant
              to the standard formula taking into account his net business
              earnings; or 2) in the alternative his AWW be set at a
              minimum of $400.00, in accord with the May 28, 2013,
              DHO determination utilizing to special circumstances.
                                                                                        9
15AP-562
(Relator's Brief, 24.)

Findings of Fact:
       {¶ 24} 1. Relator sustained a work-related injury on November 15, 2012 , his first
full day of work with his employer, Eclipse Advantage, LLC ("Eclipse"). Relator's workers'
compensation claim has been allowed for the following conditions:
              Crushing injury right foot; crushing injury right lower leg;
              open fracture right tibia shaft with tibia; open fracture right
              tibial plafond; traumatic compartment syndrome right lower
              extremity; traumatic compartment syndrome right foot;
              open wound right knee; open wound right foot.

       {¶ 25} 2. The Ohio Bureau of Workers' Compensation ("BWC") originally set his
AWW at $80.82.
       {¶ 26} 3. In January 2013, relator filed a C-86 motion asking that his AWW be
reset at $400 per week. In support, relator submitted an affidavit of unemployment and
paystubs from Michael's Furniture.
       {¶ 27} 4. In an order mailed February 4, 2013, the BWC reset relator's AWW at
$142.11.
       {¶ 28} 5. In an order mailed March 12, 2013, the BWC reset relator's AWW at
$159.88.
       {¶ 29} 6. Relator appealed and asked that his AWW be set at no less than $819.45.
Relator asserted that he was unemployed for approximately 24 weeks during the relevant
time period. Relator submitted a wage statement including his own calculations, W-2s
from Michael's Furniture and Eclipse, a printout from Ohio Department of Job and
Family Services, and tax return information from 2011 and 2012 when he had self-
employment income from buying and selling cars. Relator sold three cars in 2011 for
$6,000, and four cars in 2012 for $10,000. Relator also stated:
              In 2012, while I was working at Michael's I was making
              enough money to buy cars in order to sell them.

              I was hired by Eclipse at $10.00/hour for 24 hours on 1st
              shift and 16hrs on 3rd shift. The understanding was that I
              would be paid $400.00 per week, but I was injured before I
              could start the 3rd shift work.
                                                                                      10
15AP-562
       {¶ 30} 7. Relator's appeal was heard before a district hearing officer ("DHO") on
May 28, 2013. The DHO set relator's AWW at $400 per week, stating:
              The average weekly wage is set at $400.00 per week, which
              is the weekly rate that the Injured Worker would have earned
              for the Employer of record per the 05/13/2013 C-94-A Wage
              Statement/Affidavit.

       {¶ 31} 8. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on July 29, 2013. At that time, the SHO set relator's AWW at $242.41. The SHO
explained his calculations, stating:
              The Staff Hearing Officer orders that the average weekly
              wage for this claim be set at $242.41. This figure is computed
              by dividing the Injured Worker's earnings of $6,683.25,
              received in the one year period prior to injury, by a divisor of
              27.57 weeks of work. (The Staff Hearing Officer finds that the
              Injured Worker was unemployed 24.43 weeks in the one year
              period prior to injury for reasons beyond his control,
              specifically a layoff from Michael's Furniture on or about
              05/27/2012 -- the Injured Worker returned to work on or
              about 11/14/2012).

              In issuing this order, the Staff Hearing Officer finds that the
              Injured Worker received wages in the amount of $1,385.25
              from Michael's Furniture for the period from 11/15/2011
              through 12/31/2011. This finding is based upon the Injured
              Worker's C-94A affidavit in file. The Staff Hearing Officer
              further finds that in the period from 01/01/2012 through
              05/27/2012, the Injured Worker received earnings of $5,198
              from Michael's Furniture. The Staff Hearing Officer
              additionally finds that the Injured Worker earned $100 with
              Eclipse Advantage prior to his injury of 11/15/2012. Dividing
              the sum of these totals ($6,683.25) by a divisor of 27.57
              weeks yields $242.41 for the average weekly wage.

              In issuing this order, the Staff Hearing Officer rejects the
              Injured Worker's request to include earnings from self-
              employment from the sale of motor vehicles in the 2011 and
              2012 tax years. The Injured Worker argues that he had
              earnings of $6,000 from the sale of three motor vehicles in
              the 2011 tax year: 1) $1,000 in earnings from the sale of a
              1997 Pontiac on 11/01/2011; 2) $2,000 from the sale of a
              2002 Dodge Intrepid on 11/21/2011; and 3) $3,000 from a
              2001 Yamaha R6 sale, date unknown. The Staff Hearing
              Officer further notes the Injured Worker's argument that he
                                                                             11
15AP-562
           received earnings of $10,000 for the 2012 tax year for the
           sale of four motor vehicles: 1) a 2001 Dodge Ram Truck in
           the amount of $5,000 on 02/18/2012; 2) a 1995 Chevrolet
           Camaro in the amount of $1,200 on 04/22/2012; 3) a 2002
           Buick Regal in the amount of $2,000 on 03/09/2012; and 4)
           a 2001 Chrysler Sebring vehicle on or about 01/18/2012 in
           the amount of $1,800.

           The Staff Hearing Officer declines to include these sales
           figures into the Injured Worker's average weekly wage
           calculation for the following reason. The Staff Hearing
           Officer finds that the Injured Worker's C-94A wage
           statement in file indicates that "in 2012, while I was working
           at Michael's, I was making enough money to buy cars
           in order to sell them." (Emphasis added.) The business
           income from self-employment reflected on the 2011 and
           2012 tax returns in file ($6,000 and $10,000, respectively),
           does not account for the amount of the business expense
           associated with the purchase of the vehicles which the
           Injured Worker sold. Thus, the Staff Hearing Officer
           concludes that the $6,000 and $10,000 income from self-
           employment reflected by the Injured Worker's tax returns do
           not provide an accurate reflection of earnings received from
           his efforts. Rather, the $6,000 and $10,000 figure reflect
           business income which was not off-set by operating expenses
           (the initial outlay of money for the purchase of such vehicles,
           the cost for the title transfer of the vehicles, and insurance
           costs to insure the business inventory against loss or
           damage, etc.). Therefore, incorporating the $6,000 and
           $10,000 figures into the Injured Worker's average weekly
           wage computation would artificially increase the resulting
           average weekly wage figure and result in a windfall to the
           Injured Worker. Simply stated, business income is not akin
           to earnings. Operating expenses, such as the cost for the
           purchase of the automobiles sold by the Injured Worker,
           must be considered and deducted from the business income
           before an accurate determination of profit or earnings from
           the Injured Worker's self-employment as a car salesman may
           be established.

           Given these above findings, the Staff Hearing Officer
           determines that the average weekly wage computation of
           $242.41 is appropriate in this claim. All prior compensation
           is to be adjusted in accord with this order.

           This order is based upon the Injured Worker's wage
           documentation in file from Michael's Furniture; the wage
                                                                                           12
15AP-562
              information in file from Eclipse Advantage; the
              unemployment compensation records in file reflecting 24.43
              weeks of unemployment; and the Injured Worker's 2011 and
              2012 tax returns in file. The Staff Hearing Officer also
              considered the statements from the purchasers of the above
              described vehicles with the dates of such purchases indicated
              therein.

       {¶ 32} 9. Relator's further appeal was refused by order of the commission mailed
September 21, 2013.
       {¶ 33} 10. Thereafter, relator filed the instant mandamus action in this court.
Conclusions of Law:
       {¶ 34} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 35} The Supreme Court of Ohio has set forth three requirements which must be
met in establishing a right to a writ of mandamus: (1) that relator has a clear legal right to
the relief prayed for; (2) that respondent is under a clear legal duty to perform the act
requested; and (3) that relator has no plain and adequate remedy in the ordinary course
of the law. State ex rel. Berger v. McMonagle, 6 Ohio St.3d 28 (1983).
       {¶ 36} In order for this court to issue a writ of mandamus as a remedy from a
determination of the commission, 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). On the other hand, 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). Furthermore, questions of credibility and the weight to be
given evidence are clearly within the discretion of the commission as fact finder. State ex
rel. Teece v. Indus. Comm., 68 Ohio St.2d 165 (1981).
       {¶ 37} Under workers' compensation law, benefits payable to claimants are
calculated based upon the figure known as the AWW. R.C. 4123.61 provides:
                                                                                         13
15AP-562
              The average weekly wage of an injured employee at the time
              of the injury * * * is the basis upon which to compute
              benefits.

              ***

              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,
              provided that the administrator shall not recalculate the
              claimant’s average weekly wage for awards for permanent
              total disability solely for the reason that the claimant
              continued working and the claimant’s wages increased
              following the injury.

       {¶ 38} Here, relator contends that the commission should have applied the "special
circumstances" provision of R.C. 4123.61 to calculate his AWW. Relator asserts that the
SHO utilized the standard formula and then refused to include all of his earnings in that
calculation resulting in an unfair, low AWW. At a minimum, relator asserts he has a clear
legal right to have his AWW set at $400 (as the DHO found) because he would have
earned $400 per week at Eclipse but for the fact that he was injured.
       {¶ 39} First, the SHO was not required to set relator's AWW at $400. Relator
asserts this figure is the only figure which would demonstrate the SHO utilized the special
circumstances provision of R.C. 4123.61. In determining his AWW, the SHO reviewed
and considered all the evidence relator presented, including his tax returns. In discussing
those tax returns, the SHO specifically noted that, in providing information of his
business income, relator did not offset that income by operating expenses. The SHO
specifically found that utilizing relator's gross income from the sale of automobiles was
not the proper figure from which to determine his AWW.
       {¶ 40} To the extent relator argues the commission abused its discretion by not at
least setting his AWW at $400, the magistrate disagrees. In his affidavit, relator stated "I
                                                                                          14
15AP-562
was hired by Eclipse at $10.00/hour for 24 hrs on 1st shift and 16 hours on 3rd shift. The
understanding was that I would be paid $400.00 per week, but I was injured before I
could start the 3rd shift work." Unfortunately, relator's statement is the only evidence
that he was going to earn $10.00 an hour/$400 a week. Further, in his brief, he indicates
he was hired by Eclipse at "$8.50 per hour for 40 hour work-week." (Relator's Brief, 7.)
This information contradicts his assertion.      The SHO could have used the special
circumstances provision and set his AWW at $400, but, based on his evidence, relator
was attempting to get his AWW set at $819.45. It cannot be said the commission abused
its discretion by not setting his AWW at $400.
       {¶ 41} In State ex rel. Zingales v. Indus. Comm., 10th Dist. No. 08AP-643, 2009-
Ohio-1860, this court considered the Supreme Court of Ohio's decision concerning the
calculation of AWW in State ex rel. McDulin v. Indus. Comm., 89 Ohio St.3d 390 (2000),
and concluded that the calculation of the AWW should be based on a person's net income
following deductions from their gross income. To do otherwise would result in a windfall
for the claimant.
       {¶ 42} In the present case, relator acknowledges he "was not aware that he could
have and should have deducted expenses and costs associated with the transactions of the
vehicles." (Relator's Brief, 18.)   As such, relator appears to concede that the SHO's
decision not to accept his gross income for purposes of determining his AWW was correct,
although, in his opinion, the SHO still should have used the figures he reported to the
Internal Revenue Service. In arguing that the SHO nevertheless calculated his AWW
incorrectly warranting reconsideration, relator again cites this court's decision in Zingales
and asserts that a clear mistake of law occurred.       For the reasons that follow, this
magistrate disagrees.
       {¶ 43} In Zingales, the BWC set the AWW of Anthony Zingales, Sr., at $694.75 in
November 2000. Eight years later, the BWC filed a motion requesting the commission
invoke its continuing jurisdiction under R.C. 4123.52 to modify and reduce Zingales'
AWW. The BWC cited the McDulin decision and asserted that Zingales' gross earnings,
including business expenses, had been improperly utilized to calculate his AWW when,
instead, his net earnings should have been utilized to determine his AWW.                The
commission exercised its continuing jurisdiction and modified Zingales' AWW. Here,
                                                                                        15
15AP-562
relator asserts that the commission should have applied the Zingales reasoning, granted
his appeal, and recalculated his AWW.
       {¶ 44} The problem with relator's argument is that the burden was on him to
present evidence from which the commission could properly calculate his AWW. To the
extent that relator failed to present evidence of his net income so the SHO could have
utilized that figure and calculated his AWW, relator failed to meet his burden of proof.
The SHO utilized the evidence which relator presented to calculate his AWW. That does
not constitute an abuse of discretion nor does it constitute a clear mistake of law or fact
and the commission was not required to grant relator's appeal from the SHO's decision
because such appeals are discretionary.        It is not an abuse of discretion for the
commission to refuse to grant an appeal or reconsideration when relator failed to present
the proper evidence from which the SHO, at hearing, determined his AWW.
       {¶ 45} Based on the foregoing, it is this magistrate's decision that relator has not
demonstrated that the commission abused its discretion in setting his average weekly
wage and this court should deny his request for a writ of mandamus.




                                              /S/ MAGISTRATE
                                              STEPHANIE BISCA


                              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).
