[Cite as State ex rel. Tantarelli v. Decapua Ents., Inc., 2017-Ohio-5603.]


                               IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT

State ex rel. Anthony R. Tantarelli,                   :

                 Relator,                              :

v.                                                     :                     No. 16AP-700

Decapua Enterprises, Inc., and                         :                 (REGULAR CALENDAR)
Industrial Commission of Ohio,
                                                       :
                 Respondents.
                                                       :


                                             D E C I S I O N

                                        Rendered on June 29, 2017


                 On brief: Law Office of Stanley R. Jurus, and Michael J.
                 Muldoon, for relator.

                 On brief: Michael                 Soto,     for    respondent   Decapua
                 Enterprises, Inc.

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

                                    IN MANDAMUS
                      ON OBJECTION TO THE MAGISTRATE'S DECISION
DORRIAN, J.
        {¶ 1} Relator, Anthony R. Tantarelli, commenced this original action requesting
this court issue a writ of mandamus ordering respondent Industrial Commission of Ohio
("commission") to vacate its order which denied his motions to increase his average
weekly wage ("AWW"), and ordering the commission to grant his request for an increase.
        {¶ 2} Pursuant to Civ.R. 53 and Loc.R. 13(M) of the Tenth District Court of
Appeals, this matter was referred to a magistrate who issued a decision, including findings
of fact and conclusions of law, which is appended hereto. The magistrate concluded that
No. 16AP-700                                                                             2


relator did not provide any reason for his unemployment in the year preceding his
employment with respondent Decapua Enterprises, Inc., and subsequent injury. Thus,
this case can be distinguished from the facts in Riley v. Indus. Comm., 9 Ohio App.3d 71
(10th Dist.1983) and State ex rel Clark v. Indus. Comm., 69 Ohio St.3d 563 (1994), as the
relators in those cases both provided reasons for the absences from the workforce,
whereas relator herein did not provide a reason. The magistrate further found that relator
failed to substantiate his assertion that he had been actively seeking employment. Finally,
the magistrate found that relator had numerous opportunities to present evidence to
support his motions for recalculation but failed to do so. Accordingly, the magistrate
determined that the requested writ of mandamus should be denied.
      {¶ 3} Relator has filed the following objection to the magistrate's decision:
             The Relator would strongly object to the Magistrate's
             recommendation in this case. In this case, an abuse of
             discretion has occurred and it is incumbent upon this
             Honorable Court to address the abuse of discretion.

      {¶ 4} Relator asserts that it is patently unfair to only consider three weeks of a
claimant's earnings to address his AWW. Relator argues first that the magistrate erred in
distinguishing the present case from Clark and that Clark is on point. Second, relator
argues the magistrate erred in not following R.C. 4123.61 and 4123.95 by not eliminating
relator's 49 weeks of unemployment in the year preceding the injury.
      {¶ 5} The standard calculation to be used to determine AWW is to divide the total
wages earned in the year prior to the date of injury by 52. Id. at 565. However, there are
two exceptions to the standard calculation: (1) unemployment beyond the control of the
claimant; and (2) the "special circumstances" provision in R.C. 4123.61. R.C. 4123.61
provides:
             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.

             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'
No. 16AP-700                                                                                             3


                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.

        {¶ 6} The arguments raised in relator's objection regarding Clark are essentially
the same as those raised to and addressed by the magistrate.
        {¶ 7} The magistrate determined that it was not an abuse of discretion for the
commission to deny relator's request for recalculation as relator failed to meet his burden
of proof. The magistrate noted that relator's own testimony1 contradicted his affidavit and
that the commission found relator's self-serving affidavit was not persuasive in the
absence of any documentation concerning employers relator contacted looking for
employment.
        {¶ 8} We agree that the rate set by the commission appears law. However, having
reviewed the record we agree with the commission that relator did not meet his burden to
trigger application of R.C. 4123.61 exceptions and therefore cannot show that the rate was
substantially unjust. Relator's affidavit submitted with his first application merely states
that he "was unemployed but actively seeking employment."                       In Clark, the relator
submitted an affidavit averring that she had left the workforce to assume custody of her
granddaughter who had been abused by her mother who was suffering from mental
illness. Upon her return to work, the relator worked only a few hours per week to see how
her granddaughter would adjust to her absence. In Riley, the relator had been "receiving
other income making it unnecessary for him to work." Id. at 71.
        {¶ 9} In State ex rel. Cawthorn v. Indus. Comm., 78 Ohio St.3d 112, 114 (1997),
the Supreme Court of Ohio noted that R.C. 4123.61 "provides standard AWW
computation that is to be used in all but the most exceptional cases." Relator herein had
numerous opportunities to supplement his affidavit and present evidence to show R.C.
4123.61 should be applied. Relator did not show that his is an exceptional case.


1The record before this court does not contain a transcript of the testimony and therefore we are unable to
review the same.
No. 16AP-700                                                                             4


       {¶ 10} On review of the magistrate's decision, an independent review of the record,
and due consideration of relator's objection, we find the magistrate has properly
determined the pertinent facts and applied the appropriate law. We therefore overrule
relator's objection to the magistrate's decision and adopt the magistrate's decision as our
own, including the findings of fact and conclusions of law contained therein. Accordingly,
the requested writ of mandamus is hereby denied.
                                                                     Objection overruled;
                                                               writ of mandamus denied.

                     BROWN and LUPER SCHUSTER, JJ., concur.
No. 16AP-700                                                                              5


                                       APPENDIX
                            IN THE COURT OF APPEALS OF OHIO

                                TENTH APPELLATE DISTRICT

The State ex rel. Anthony R. Tantarelli,       :

                 Relator,                      :

v.                                             :                   No. 16AP-700

Decapua Enterprises, Inc.                      :              (REGULAR CALENDAR)
and
Industrial Commission of Ohio,                 :

                 Respondents.                  :



                            MAGISTRATE'S DECISION

                                 Rendered on March 21, 2017



                 Michael J. Muldoon, for relator.

                 Michael Soto, for respondent, Decapua Enterprises, Inc.

                 Michael DeWine, Attorney General, and Natalie J. Tackett,
                 for respondent, Industrial Commission of Ohio.


                                       IN MANDAMUS

       {¶ 11} Relator, Anthony R. Tantarelli, 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 denied his motion to increase his average weekly
wage ("AWW"), and ordering the commission to grant his request for an increase.
Findings of Fact:
       {¶ 12} 1. Relator began working for Decapua Enterprises, Inc. ("Decapua") on
July 16, 2013.
No. 16AP-700                                                                              6


       {¶ 13} 2. Relator sustained a work-related injury on August 12, 2013, and his
workers' compensation claim has been allowed for the following conditions:
              Left hip contusion; left hand sprain; left rotator cuff strain;
              neck strain; left wrist sprain; left shoulder superior labral
              tear/slap lesion.

       {¶ 14} 3. At the time he was injured, relator's hourly rate was $11.90. Decapua set
relator's AWW at $22.26.       Decapua arrived at this figure by dividing relator's total
earnings of $1,157.51 by 52 weeks.
       {¶ 15} 4. On February 10, 2014, relator filed a motion requesting that his AWW be
set at $416.58. In support of his motion, relator attached an affidavit wherein he stated as
follows:
              For the period from August 12, 2012 until I began my
              employment with the temporary agency, Dawson Resources
              in July 2013 I was unemployed but actively seeking
              employment.

       {¶ 16} 5. Relator's motion was heard before a district hearing officer ("DHO") on
April 29, 2014. The DHO denied relator's request on grounds that he failed to submit
sufficient credible evidence, specifically stating:
              The Injured Worker's request to set the average weekly wage
              at $416.58 is denied. The District Hearing Officer finds that
              the Injured Worker has failed to submit sufficient credible
              evidence to exclude 49 weeks from the standard formula or
              support an alternative calculation. The Injured Worker 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.

       {¶ 17} 6. Relator appealed and the matter was heard before a staff hearing officer
("SHO") on October 14, 2014. The SHO affirmed the prior DHO order and denied
relator's request to recalculate his AWW, again finding that relator had failed to present
sufficient evidence to exclude 49 weeks of unemployment. Specifically, the SHO order
provides:
              The Injured Worker's request to set the average weekly wage
              at $416.58 is denied. The Staff Hearing Officer finds the
              Injured Worker has 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
No. 16AP-700                                                                          7


             determining an average weekly wage. Specifically, the Staff
             Hearing Officer finds the Injured Worker has failed to justify
             his request to exclude 49 weeks of unemployment between
             08/12/2012 and approximately 07/21/2013, when the
             Injured Worker began working for the Employer of record.
             The Injured Worker testified he last worked regularly in
             2008 when he was self employed as a tow truck operator.
             The Injured Worker's affidavit, signed 01/23/2014, avers
             that he was unemployed but actively seeking work prior to
             his employment with the named Employer but this assertion
             remains undocumented and substantially unsupported. For
             instance, the Injured Worker was only able to identify three
             potential employers he sought employment with.
             Furthermore, the Injured Worker testified that he did engage
             in some "miscellaneous" work in 2012 described by his
             testimony as buying cars and selling car parts and hauling
             items to scrap yards. The Injured Worker testified, however,
             that he failed to file a tax return nor has he supplied any
             documentation concerning those earnings to the Industrial
             Commission. Accordingly, the Staff Hearing Officer finds the
             Injured Worker has failed to establish the existence of
             "special circumstances" as provided for in Revised
             Code 4123.61 and therefore the Staff Hearing Officer declines
             to apply any alternative calculation other than the
             standard 52 week divisor to this claim.

             All of the evidence available to the Industrial Commission
             was reviewed and considered in rendering this decision.

      {¶ 18} 7. Relator's further appeal was refused by order of the commission mailed
November 5, 2014.
      {¶ 19} 8. Relator filed a second motion on January 29, 2016, again asking that his
AWW be recalculated. In support of his second motion, relator submitted evidence of his
earnings in 2015, asserting that he earned $39,155.95. Relator attached copies of checks
issued to him by K & K Towing and Recovery, LLC. Relator argued that the evidence of
his increase in earnings two years after his date of injury constituted grounds for the
commission to increase his AWW.
      {¶ 20} 9. The DHO denied the request, stating:
             The Injured Worker's request to reset the Average Weekly
             Wage in this claim, is denied. The District Hearing Officer
             finds that the evidence in file and presented at this hearing
             does not support this request.
No. 16AP-700                                                                           8


             The District Hearing Officer finds that the Injured Worker
             has not presented new evidence to justify the resetting of his
             Average Weekly Wage in this claim. The District Hearing
             Officer finds that the Injured Worker has not presented
             evidence of special circumstances which would warrant an
             increase in the Injured Worker's Average Weekly Wage.

             Evidence was reviewed and considered.

      {¶ 21} 10. Relator's appeal was heard before an SHO on July 14, 2016. The SHO
denied the motion both on grounds that res judicata applied and on grounds that relator
failed to demonstrate that special circumstances existed to warrant an alternative method
of calculating his AWW. Specifically, the SHO order provides:
             The C-86 motion, filed, 01/29/2016, request that the
             Average Weekly Wage be set pursuant to Ohio Revised Code
             4123.61 is res judicata.

             The Injured Worker's motion requests that the issue of the
             Average Weekly Wage be schedule[d] for hearing pursuant to
             R.C. 4123.61. At hearing, the Injured Worker's attorney
             requested that the Average Weekly Wage be set at $320.00
             per week based upon the minimum hourly rate of pay of
             $8.00 per hour multiplied by 40 hours a week.

             The Injured Worker argued that special circumstances exist
             to support an alternative method of calculating the Injured
             Worker's AWW than the standard method of considering the
             total earnings for the 52 week period of time prior to the
             industrial injury.

             The Injured Worker argues that the Injured Worker worked
             for 27 years in his own business. The Injured Worker's
             construction business ended in 2002 per the Injured
             Worker's testimony at hearing. The Injured Worker's
             attorney argued that the Injured Worker made more money
             during the years that the Injured Worker operated his own
             business, several years before this industrial injury, than the
             year before the industrial injury (08/12/2012 through
             08/12/2013). The Injured Worker's attorney also argued that
             in the year of 2014 the Injured Worker made more money
             than the year before the industrial injury as documented by
             the 1099 - miscellaneous income record for 2014 for the
             Injured Worker, which documents earnings for 2014 of
             $12,868.90. The Injured Worker's attorney also argued that
             in 2015 the Injured Worker earned approximately $39,000.
No. 16AP-700                                                                            9


             The Injured Worker submitted copies of checks which he
             [sic] were received by K & K Towing and Recovery. These
             checks demonstrate the Injured Worker was paid by the job
             for towing vehicles for K & K Towing. However, no 2015
             1099-Misc wage documentation from K & K Towing is on
             file. It is not clear whether the earnings received by the
             Injured Worker for 2015 were claimed for tax and/or income
             purposes.

             The Hearing Officer fails to find sufficient documentation
             that special circumstances exi[s]t to merit an alternative
             method of calculation of AWW due to the Injured Worker's
             prior and subsequent earning capacity. The Hearing Officer
             notes that there are no wages on file from when the Injured
             Worker operated his own business, which was remote in
             time (in 2002) nor is there sufficient wage documentation on
             file from 2015 subsequent to the industrial injury.

             Notwithstanding the lack of sufficient documentation of
             special circumstances, this Hearing Officer finds the issue of
             whether special circumstances exist in order to utilize an
             alternative method of calculating the Average Weekly Wage
             was previously adjudicated by the Staff Hearing Officer
             on 10/14/2014. The 10/14/2014 Staff Hearing Officer
             specifically indicated in her order that the Injured Worker
             failed to demonstrate the existence of special circumstances
             which would justify the use of an alternative calculation to
             the standard 52 weeks divisor used to determine the Average
             Weekly Wage.

             Based upon the 10/14/2014 Staff Hearing Officer
             (issued 10/17/2014) there were no special circumstances to
             merit the use of an alternative method of calculating the
             Injured Worker's Average Weekly Wage.

             Therefore, this Hearing Officer finds that the issue of
             resetting the Average Weekly Wage due to special
             circumstances is res judicata.

      {¶ 22} 11. Relator's further appeal was refused by order of the commission mailed
August 9, 2016.
      {¶ 23} 12. Thereafter, relator filed the instant mandamus action in this court.
No. 16AP-700                                                                               10


Conclusions of Law:
       {¶ 24} For the reasons that follow, it is this magistrate's decision that this court
should deny relator's request for a writ of mandamus.
       {¶ 25} 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).
       {¶ 26} 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).
       {¶ 27} Under workers' compensation law, benefits payable to claimants are
calculated based upon the figure known as the AWW. R.C. 4123.61 provides:
              The average weekly wage of an injured employee at the time
              of the injury or at the time disability due to the occupational
              disease begins is the basis upon which to compute benefits.

              In cases of temporary total disability the compensation for
              the first twelve weeks for which compensation is payable
              shall be based on the full weekly wage of the claimant at the
              time of the injury or at the time of the disability due to
              occupational disease begins.

              ***

              In ascertaining the average weekly wage for the year previous
              to the injury, or the date the disability due to the
No. 16AP-700                                                                             11


             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.

             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.

      {¶ 28} R.C. 4123.56(A) provides that, for the first 12 weeks of total disability, a
qualifying injured worker's entitlement to temporary total disability ("TTD")
compensation is 72 percent of the employee's full weekly wage ("FWW"), subject to
statutory maximum and minimum amounts. The determination of an injured worker's
FWW looks to be injured worker's wages in the seven days or six weeks prior to the
industrial injury. See State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm., 126
Ohio St.3d 37, 2010-Ohio-2451. AWW is generally calculated by dividing the injured
worker's wages for the year preceding the date of injury by 52 weeks R.C. 4123.61.
      {¶ 29} In the present case, the commission used the standard formula for
determining relator's AWW. Relator argued that, in the year preceding his injury, he was
unemployed for 49 weeks. Relator submitted an affidavit asserting that in 2012 and 2013,
he had been actively seeking work and that, therefore, those 49 weeks should be excluded
from the calculation of his AWW. The commission determined that relator failed to
present sufficient evidence warranting the exclusion of those 49 weeks. Inasmuch as his
affidavit was the only evidence relator submitted to support his argument that those 49
weeks should be excluded, it is apparent that the commission did not find this self-serving
affidavit to be persuasive in the absence of any documentation concerning employees
relator contacted looking for employment. Furthermore, at the hearing, relator testified
that he did perform some work in 2012 but did not file tax returns. Relator's own
No. 16AP-700                                                                           12


testimony contradicted his affidavit. It was not an abuse of discretion for the commission
to deny relator's request as he failed to meet his burden of proof.
       {¶ 30} In 2016, when relator again sought an increase in his AWW, he argued that
his ability to earn approximately $39,000 in 2015 constituted sufficient evidence for the
commission to grant his motion and increase his AWW. Relator argued that the Supreme
Court of Ohio's decision in State ex rel. Clark v. Indus. Comm., 69 Ohio St.3d 563 (1994),
supported his argument. For the reasons that follow, this magistrate disagrees.
       {¶ 31} Gladys Clark began working for Bill Knapp's Ohio, Inc. the first week of
July 1988 and sustained a work-related injury on July 29, 1988. The Ohio Bureau of
Workers' Compensation ("BWC") originally set her AWW at $13.49 by dividing her
earnings for her four weeks of employment by 52.
       {¶ 32} Clark filed a motion with the commission asking that her AWW be
increased. In support, Clark filed the following affidavit:
                 "1. I worked as a waitress at a Bob Evans Restaurant from
                 1983 to 1986. My attorney has attempted to obtain wage
                 information to document my earning power during that
                 period but Bob Evans has been unable to produce those wage
                 records.

                 "2. In 1986, extraordinary circumstances in my personal life
                 forced me to leave the work force. Because my daughter
                 suffers from severe psychiatric conditions, I was forced to
                 leave the work force in order to get custody of my
                 granddaughter, who was an abused child. I was unable to
                 work for several years due to the various legal proceedings
                 and the need to care for my grandchild.

                 "3. On or about July 1, 1988, I attempted to return to work
                 on a very limited basis (i.e., a couple of hours per week) at
                 Bill Knapps [sic] in order to see how my granddaughter
                 would adjust to my absence from the home. The attached C-
                 94-A has been provided by Bill Knapps [sic] and shows my
                 limited earnings during that period. The injury in this claim
                 occurred while I was working only several hours per week.

                 "4. While I working on a more regular basis for Bob Evans
                 between 1983 and 1986, my typical weekly earnings,
                 including salary and tips, was [sic] approximately
                 $130.00[.]"
Id. at 563-64.
No. 16AP-700                                                                             13


          {¶ 33} Clark's motion was heard before a DHO who granted it in part. Specifically,
the DHO increased her AWW to $20, explaining as follows:
                "Average weekly wage * * * is set at $20.00. This amount is
                calculated pursuant to R.C. 4123.61, using the standard of
                substantial justice.

                "Per claimant's testimony at hearing, claimant voluntarily
                removed herself from [the] work force to care for her 14 year
                old grandchild and returned to [the] work force only four (4)
                weeks prior to her injury. Claimant was scheduled to work
                only two (2) hours a week at Bill Knapp's and worked only
                two (2) hours a week for the four (4) weeks prior to her
                injury. There are no wages for the remaining 48 weeks of the
                year prior to her injury since her removal from the work
                force. Claimant indicated that she earned $2.01 per hour
                plus tips which she indicated was a few dollars. Average
                weekly wage and full weekly wage is [sic] set at $20.00 based
                upon an hourly rate set at $10.00 multiplied by two (2)
                hours a week (the number of hours a week claimant
                worked)."

Id. at 564.
          {¶ 34} Clark appealed and submitted additional information indicating that she
"was currently employed full-time at Lazarus" with "weekly earnings of $208."            Id.
Relator attached numerous pay stubs in support of this second affidavit. Despite the
additional evidence, the SHO affirmed the prior DHO order.
          {¶ 35} Ultimately, a writ of mandamus was granted by the Supreme Court and the
matter was returned to the commission for further consideration. Specifically, the court
stated:
                "In cases where there are special circumstances under which
                the average weekly wage cannot justly be determined by
                applying this section, the commission, in determining the
                average weekly wage in such cases, shall use such method as
                will enable it to do substantial justice to the claimants."
                R.C. 4123.61.

                Two questions are accordingly raised: (1) Did claimant
                demonstrate "special circumstances" so as to warrant a
                departure from the standard AWW formula? and (2) If so, is
                the current AWW substantially just? For the reasons to
                follow, we answer only the first question in the affirmative.
No. 16AP-700                                                                   14


            In invoking the "substantial justice" provision to raise
            claimant's AWW, the district hearing officer necessarily
            found that a "special circumstance" existed. The hearing
            officer did not, however, identify the "special circumstance."
            In [State ex rel. Riley v. Indus. Comm., 9 Ohio App.3d 71
            (10th Dist.1983)], 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.

            In Riley, the claimant entered the labor force on March 16,
            1980. Prior to that time, the receipt of other income had
            made it unnecessary for him to work. On April 5, 1980, Riley
            was injured. The bureau set his AWW at $10.92, dividing
            income received from March 16, 1980 through April 5, 1980
            by fifty-two.

            In reviewing the figure, the appellate court first found that
            R.C. 4123.61's exclusion for involuntary unemployment did
            not apply, since claimant had voluntarily stayed out of the
            work force. Resolution thus hinged on whether claimant had
            "shown special circumstances upon which his average weekly
            wage cannot justly be determined by applying the usual
            calculation which resulted in the $10.92 rate found by the
            commission. If so, the Industrial Commission is required to
            use another method to enable it to do substantial justice to
            the relator." Id. at 72, 9 OBR at 92, 458 N.E.2d at 430.

The court concluded:

            "[T]he total circumstances indicate that the commission
            abused its discretion and acted contrary to R.C. 4123.61 in
            determining relator's average weekly wage by utilizing the
            salary for three weeks as that for the entire year. There were
            special circumstances involved since relator first became
            employed three weeks before his injury, and an unjust result
            was reached by considering only those three weeks. The
            three weeks were obviously an unjust barometer of relator's
            prospective future average wages that would be lost if he
            could not work." Id. at 73, 9 OBR at 93, 458 N.E.2d at 431.

            We find Riley instructive on the question of substantial
            justice as well. In this instance, claimant submitted evidence
            that demonstrated that she was, by then, regularly
            working 37.5 hours per week. That evidence, coupled with
            claimant's averment of earnings at Bob Evans, negates the
            commission's assertion that $ 20.00 is a just barometer of
            the amount of wages, and commensurately, the amount of
No. 16AP-700                                                                              15


                 work that claimant was accustomed to, satisfied with and
                 planned to continue.

                 Considerable debate surrounds the voluntariness of
                 claimant's reduced hours. In this case, we agree that
                 claimant's reduced hours, while commendably motivated,
                 were nonetheless voluntary. It does not, however,
                 automatically follow that because reduced hours are
                 voluntarily undertaken, any AWW, no matter how low, is
                 substantially just. If this were true, the only provision for
                 adjustment would be R.C. 4123.61's "involuntary
                 unemployment" exemption. No substantial justice exception
                 would exist.

Id. at 565-66.
       {¶ 36} In finding that a writ of mandamus was appropriate, the court relied on its
earlier decision in State ex rel. Riley v. Indus. Comm., 9 Ohio App.3d 71 (10th Dist.1983).
Although relator argues that he has presented a factual situation which is similar to the
situations presented in Riley and Clark, the magistrate disagrees.
       {¶ 37} In Riley, the claimant had substantial other income making it unnecessary
for him to work in the years which preceded his work-related injury. When Riley was
injured approximately three weeks after his employment began, the court ultimately
found that Riley had shown special circumstances on which his AWW could not be justly
determined by applying the usual calculations. The court found that the utilization of the
three weeks was an unjust barometer of Riley's perspective future average wages that
would be lost if he was not able to work.
       {¶ 38} In the present case, relator was unemployed for the majority of the year
preceding his job with Decapua and his subsequent work-related injury. Relator argued
that he actively sought employment in the year preceding his injury, but failed to submit
any evidence. Relator did not present any evidence that it was unnecessary for him to
work because he had other income from which he could support himself. Although
relator submitted an affidavit asserting that he had been actively seeking employment for
a year, relator did not present any evidence to support his self-serving affidavit. Although
relator also testified that, in reality he had been working, relator admitted he did not file
tax returns and was unable to demonstrate that he actually had income and how much
that income was. Relator simply did not meet his burden of proof. While relator did, in
No. 16AP-700                                                                              16


his second motion for an increase in his AWW, present evidence that he was now earning
considerably more, his situation still was not similar to Riley's. Relator had no income for
the year preceding his work-related injury other than the three weeks he worked for
Decapua, whereas Riley had substantial other income which he received in the year
preceding his employment and subsequent injury.
       {¶ 39} Clark had been employed by Bob Evans from 1983 to 1986, at which time
she left the workforce to care for her granddaughter. Two years later, Clark returned to
employment with Bill Knapp's Ohio, Inc. on a limited basis to see how her granddaughter
would adjust to her absence from the home. At that time, she was injured. At the time
the matter was heard before an SHO, Clark submitted evidence that she was currently
employed full-time at Lazarus with weekly earnings of $208. In concluding that the
commission's determination of Clark's AWW did not do substantial justice, the court
noted that although Clark's absence from the workforce had been voluntary, that fact
alone was not determinative. Given the evidence of her earnings at Bob Evans prior to her
absence from the workforce coupled with her subsequent earnings at Lazarus, the court
found that the commission abused its discretion.
       {¶ 40} By comparison, relator has not provided any reason for his unemployment
in the year preceding his employment with Decapua and subsequent injury. Both Riley
and Clark provided reasons for their absence from the workforce: Riley had other income
and did not need to work and Clark was caring for her granddaughter. Although the court
did state that the voluntariness of absence from the workforce was not necessarily
determinative, the court did not say that voluntary absence from the workforce could not
be determinative. Here, relator provided no explanation for why he was not working in
the year preceding his injury and, although he asserted he had been actively seeking
employment, he failed to substantiate that assertion with any evidence whatsoever.
Further, if an ability to later secure a higher paying job was enough to support a motion to
increase AWW, this would be a relatively easy way for injured workers to get an increase
in their AWW no matter why they were absent from the workforce preceding the date of
injury. That is not what is anticipated by the law.
       {¶ 41} It is this magistrate's decision that this court should deny relator's request
for a writ of mandamus for two reasons.            First, relator's factual situation differs
No. 16AP-700                                                                              17


substantially from the situations presented in both Riley and Clark. Second, relator had
numerous opportunities to present evidence to support his motions but he failed to do so.
Relator failed to meet his burden of proof. The commission was not required to rely on
relator's evidence to find the existence of special circumstances in this case. As such, this
court should deny relator's 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).
