State ex rel. Bos. v. Navistar Internatl. Transp. Corp., 99-1057.

• Decision Date: 13 December 2000
• Docket Number: No. 99-1057.,99-1057.
• Citation: 738 NE 2d 791,90 Ohio St.3d 314
• Parties: THE STATE EX REL. Bos, APPELLEE, v. NAVISTAR INTERNATIONAL TRANSPORTATIONAL CORPORATION, APPELLANT; INDUSTRIAL COMMISSION OF OHIO, APPELLEE.
• Court: Ohio Supreme Court

90 Ohio St.3d 314

738 NE 2d 791

THE STATE EX REL. Bos, APPELLEE, v. NAVISTAR INTERNATIONAL TRANSPORTATIONAL CORPORATION, APPELLANT; INDUSTRIAL COMMISSION OF OHIO, APPELLEE.

No. 99-1057.

Supreme Court of Ohio.

Submitted November 15, 2000.

Decided December 13, 2000.

Vorys, Sater, Seymour & Pease, L.L.P., and Joseph A. Brunetto, for appellant.

Stanley R. Jurus Law Office and Robert M. Robinson, for appellee.

Per Curiam.

Robert W. Bos, appellee, sought a writ of mandamus to compel the Industrial Commission of Ohio to vacate its order denying him R.C. 4123.56(B) wage-loss compensation and to enter an order granting this compensation beginning on October 2, 1995. The Court of Appeals for Franklin County granted the writ, finding that the commission had abused its discretion in denying wage-loss compensation on the ground that Bos had not experienced a wage loss after returning to work for Navistar International Transportation Corporation ("Navistar"), appellant. On Navistar's appeal as of right, we affirm.

On September 22, 1994, Bos injured his back and chest while employed by Navistar, a self-insured employer in the workers' compensation system. Bos's claim was allowed for "thoracic and lumbar strain; left chest contusion." On October 2, 1995, Bos returned to light-duty work in order to accommodate his medical restrictions, which precluded him from working in his previous position.

On June 5, 1997, Bos moved the commission for wage-loss compensation. He complained that workers in his former position were being paid at a higher hourly rate than he was in his new light-duty position. The commission denied wage-loss compensation, finding that a wage loss can be shown only by comparing the claimant's pre- and postinjury earnings; it is not based on the current earnings of workers in comparable positions.

Bos then challenged the commission's order in mandamus. The court of appeals agreed with the commission that Bos could not establish an actual wage loss based on the salaries others had attained since his injury. But the court of appeals also found that the commission had overlooked prima facie evidence suggesting at least one two-week wage-loss period. Relying on a payroll record showing that Bos earned $781.39 per week for a two-week pay period in December 1996, the court found an actual wage loss after comparing that postinjury figure with Bos's average weekly preinjury earnings of $920.18.

Navistar contends, in effect, that the court of appeals should have compared Bos's preinjury average weekly wage, or $920.18, with his postinjury average weekly wage, which Navistar calculated to be $959.90. Had the court made this comparison, Navistar continues, it would have realized that Bos is actually earning more since his injury than he was before and, therefore, has not experienced an actual wage loss. We cannot agree because Navistar's method for determining wage-loss compensation eligibility is contrary to law.

Wage-loss compensation used to be payable when the claimant's preinjury average weekly wage ("AWW") or preinjury full weekly wage ("FWW"), whichever was greater, exceeded the claimant's postinjury earnings. Former Ohio Adm.Code 4121-3-32(A)(5), 1987-1988 Ohio Monthly Record 64. But effective May 15, 1997, the formula changed. It is now based solely on whether the claimant's preinjury AWW exceeds his or her present earnings. Ohio Adm.Code 4125-1-01(F). "Present earnings" means:

"The claimant's actual weekly earnings which are generated by gainful employment unless the claimant has substantial variations in earnings. Where the claimant has substantial variations in earnings, the adjudicator shall apportion the earnings over such period of time that reasonably reflects the claimant's efforts to earn such amount. Earnings generated from commission sales, bonuses, gratuities, and all other forms of compensation for personal services customarily received by claimant in the course of his or...