DocketNumber: No. 2005-1105
Citation Numbers: 110 Ohio St. 3d 32
Judges: Connor, Donnell, Lanzinger, Moyer, Pfeifer, Resnick, Stratton
Filed Date: 7/19/2006
Status: Precedential
Modified Date: 7/21/2022
dissenting.
{¶ 15} I dissent from the majority’s decision to overrule State ex rel. Lemke v. Brush Wellman, Inc. (1998), 84 Ohio St.3d 161, 702 N.E.2d 420, and State ex rel. Price v. Cent. Servs., Inc., 97 Ohio St.3d 245, 2002-Ohio-6397, 779 N.E.2d 195. Those cases properly reflect the underlying objective of the “special circumstances” provision in R.C. 4123.61, which is to reach a just determination of an employee’s probable future earning capacity.
{¶ 16} Contrary to the majority’s assertions, Lemke and Price do not require a readjustment of the average weekly wage as originally set whenever there is
{¶ 17} Only a handful of claimants have filed mandamus actions to compel the Industrial Commission to recalculate their average weekly wages under Lemke or Price, and none were successful. In disposing of these actions, the Tenth Appellate District has experienced little difficulty in recognizing that Lemke and Price do not propose a departure from the standard calculation merely because of a natural increase in earnings over the course of time, but are instead limited to the situation where the claimant has an extremely long and consistent postinjury employment history and the application of the standard method yields a grossly unfair result. See State ex rel. White v. Indus. Comm., 10th Dist. No. 06AP-6, 2006-Ohio-944, 2006 WL 496051; State ex rel. Shockley v. Indus. Comm., 10th Dist. No. 05AP-48, 2005-Ohio-5706, 2005 WL 2787639; State ex rel. Cooper v. Indus. Comm., 10th Dist. No. 04AP-706, 2005-Ohio-3099, 2005 WL 1432328.
{¶ 18} Price explains:
{¶ 19} “ ‘The entire objective of wage calculation is to arrive at a fair approximation of claimant’s probable future earning capacity. This worker’s disability reaches into the future, not the past; the loss as a result of injury must be thought of in terms of its impact on probable future earnings, perhaps for the rest of the worker’s life. This may sound like belaboring the obvious; but unless the elementary guiding principle is kept constantly in mind while dealing with wage calculation, there may be a temptation to lapse into the fallacy of supposing that compensation theory is necessarily satisfied when a mechanical representation of this claimant’s own earnings in some arbitrary past period has been used as a wage basis.’ ” 97 Ohio St.3d 245, 2002-Ohio-6397, 779 N.E.2d 195, at ¶ 17, quoting 5 Larson’s Workers’ Compensation Law (1987) 93-17, Section 93.01[1][g].