Ohio: Res Judicata Bars Employee’s Attempt to Show Special Circumstances Regarding Wages

The Supreme Court of Ohio held that Industrial Commission did not err in finding that a workers' compensation claimant's motion to recalculate his average weekly wage (AWW) was barred by res judicata where the issue of whether special circumstances existed to avoid applying Ohio Rev. Code § 4123.61 to calculate his AWW had been decided adversely to him in a prior Commission order. The Court observed that the standard calculation to determine AWW is to divide by 52 weeks the worker's income from the year preceding the date of injury. Ohio Rev. Code § R.C. 4123.61 provides that any period of unemployment due to sickness, industrial depression, strike, lockout, or other cause beyond the employee's control should be eliminated from the number of weeks by which the previous year's salary is divided. In this case, however, that issue had already been litigated adversely to the claimant. He would not be given yet another chance to prove special circumstances.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Stateex rel. Tantarelli v. Decapua Enters., 2019-Ohio-517, 2019 Ohio LEXIS 321 (Feb. 14, 2019)

See generally Larson’s Workers’ Compensation Law, § 93.01.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law