Calculation of Temporary Total Disability Compensation Can Include Wages from Second Job

State ex rel. FedEx Ground Package Sys., Inc. v. Indus. Comm., Slip Opinion No. 2010-Ohio-2451.
Franklin App. No. 07AP-959, 182 Ohio App.3d 152, 2009-Ohio-1708. Judgment of the court of appeals affirmed.
Pfeifer, Lundberg Stratton, O'Connor, O'Donnell, and Cupp, JJ., concur.
Brown, C.J., and Lanzinger, J., not participating.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-2451.pdf

(June 8, 2010) The Supreme Court of Ohio today ruled that the Industrial Commission of Ohio did not abuse its discretion in including wages from a second job to calculate an injured worker’s average and full weekly wages in determining temporary total disability compensation for an injury he sustained on the first job.

The case centers on an injury sustained by Christopher Roper while employed by FedEx Ground Package System, Inc., where he had worked part-time since 2004. Roper took a second job in April 2006 with Integrated Pest Control that paid considerably more.

On Oct. 24, 2006, Roper was injured at FedEx, and subsequently applied for workers’ compensation benefits. As a self-insured employer, FedEx set Roper’s average weekly wage at $160.45 and his full weekly wage at $250.80, based solely on his earnings at FedEx. Roper asked the Industrial Commission to reset his average and fully weekly wages based on his combined earnings from FedEx and Integrated Pest Control. A district hearing officer, citing the “special circumstances” provision of R.C. 4123.61, granted Roper’s motion and reset his AWW at $417.05, and FWW at $457.36, based on income from both jobs. That order was administratively affirmed.

FedEx filed a mandamus action in the 10th District Court of Appeals seeking reversal of the Industrial Commission’s award of increased benefits based on Roper’s earnings from Integrated Pest Control. The appeals court denied the mandamus complaint. FedEx exercised its right to appeal the 10th District’s decision to the Supreme Court.

In today’s 5-0 per curiam opinion, which affirmed the court of appeals judgment, the Supreme Court found FedEx’s arguments unpersuasive by noting that state law does not bar the inclusion of concurrent wages in the calculation of a worker’s disability benefits; relevant case law does not limit the inclusion of concurrent wages to jobs involving ‘similar’ employment; the inclusion of concurrent wages will not discourage employment; and the inclusion of concurrent wages is not inherently unfair.

The Court found that “our review supports these calculations” and noted that “we have consistently recognized and generally deferred to the commission’s expertise in areas falling under the agency’s jurisdiction.”

The Court’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Maureen O’Connor, Terrence O’Donnell and Robert R. Cupp.

Chief Justice Eric Brown and Judith Ann Lanzinger did not participate in the Court’s deliberations or decision in the case.

Contacts
John T. Landwehr, 419.241.6000, for FedEx.

Gerald H. Waterman, 614.466.6696, for the Industrial Commission.

Theodore A. Bowman, 419.843.2001, for Christopher Roper.

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