Opinion
No. 29698
Decided April 19, 1944.
Workmen's compensation — Average weekly wage — Section 1465-84, General Code — Writ of prohibition not issued to prevent granting compensation — Factual basis for exercise of discretion by commission.
A writ of prohibition will not be issued by this court to prevent the Industrial Commission from granting compensation based on an average weekly wage as fixed by it under the last paragraph of Section 1465-84, General Code, where a factual basis for the exercise of the commission's discretion is shown by the record.
IN PROHIBITION.
This proceeding in prohibition is brought originally in this court. The relator seeks a writ prohibiting and restraining the respondents as members of the Industrial Commission from paying an award to Kenneth Ewan for injuries sustained on July 10, 1942, in the course of his employment as an employee of the relator, which injuries directly resulted in loss of vision in his left eye. The impelling reason for instituting this proceeding is the effect the fixing of a basic average weekly wage of $27 (an amount higher than the actual average weekly wage) will have on the amount of premiums the relator, as an employer, will have to pay into the state insurance fund. The facts are not indispute. The Industrial Commission awarded compensation and paid the claimant, Ewan, for temporary total disability, up to October 9, 1942, plus medical expenses. Thereafter, on March 20, 1943, upon claimant's application, the commission granted him "further temporary total compensation" up to November 2, 1942, at which time he went to work.
The commission further found on March 20, 1943, "that claimant's average weekly wage for a year prior to injury cannot justly be determined by applying the regular provisions of Section 1465-84, and under the authority of the last paragraph of that section, the commission orders that such average weekly wage be fixed at $27."
The Powhatan Mining Company (relator herein) filed a motion for reconsideration and the commission in passing on the motion made the following order:
"After carefully considering the questions raised by the employer in its motion for reconsideration filed April 1, 1943, the commission finds that the circumstances concerning this claimant's earnings are such as clearly warrant the invoking of Section 1465-84 in the fixing of such average weekly wage at $27, and therefore, orders that the employer's motion filed April 1, 1943, be and the same is hereby dismissed."
On May 13, 1943, the commission allowed compensation from November 2, 1942, to March 25, 1945, in the sum of $2,250 for permanent partial disability due to a total loss of vision in the left eye, or at the rate of $18 per week for 125 weeks, which allowance would be on the basis of the average weekly wage fixed.
Ewan was employed "from July 7, 1941, to May 30, 1942, at the rate of $15 per week, being a total of $645, and was employed from June 6, 1942, to June 15, 1942, by the Manley Coal Corporation at the rate of $15 per week, and was employed by the Powhatan Mining Company from July 2, 1942, to July 10, 1942, at the rate of $50.12 per week." Accordingly, his actual average weekly wage for the year preceding July 10, 1942, was approximately $15, or a little more than one-half of the basic average weekly wage fixed at $27.
Mr. Robert E. Scott, for relator.
Mr. Thomas J. Herbert, attorney general, Mr. Robert E. Hall and Mr. Albertus B. Conn, for respondents.
The position of counsel for relator is disclosed by the following quotation from his brief:
"It is the contention of the relator that the fixing by the commission of the average weekly wage at $27 per week is absolutely void and beyond the jurisdiction of the commission for the reason that they did not find a definite fact to exist that would justify them in applying the last paragraph of Section 1465-84 of the General Code."
Section 1465-84, General Code, reads:
"The average weekly wage of the injured person at the time of the injury shall be taken as the basis upon which to compute the benefits.
"In cases of temporary total disability the compensation for the first twelve (12) weeks for which compensation is payable shall be based on the full weekly wage of the claimant at the time of the injury; provided, that when a factory, mine or other place of employment is working short time, in order to divide work among the employees, the commission shall take that fact into consideration when determining the wage for the first twelve (12) weeks of temporary total disability.
"Compensation for all further temporary total disability shall be based as provided herein for permanent disability claims.
"In death claims, permanent total disability claims, permanent partial disability claims and claims for impairment of earnings, the claimant's or the decedent's average weekly wage for the year preceding the injury shall be the weekly wage upon which compensation shall be based. In ascertaining the average weekly wage for the year previous to the injury, any period of unemployment due to sickness, industrial depression, strike or lockout, shall be eliminated.
"In cases where there are special circumstances under which the average weekly wage cannot justly be determined by applying the above provisions 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."
Prohibition is a remedy calculated to keep inferior tribunals from usurping power with which they have not been invested. Copperweld Steel Co. v. Industrial Commission, 142 Ohio St. 439, 443. That the commission had power to fix the average weekly wage cannot be denied, for that power is expressly conferred by statute. So, if the relator be entitled to the writ at all, it would be upon the theory that the commission so far exceeded its power that its action was void as an excess of jurisdiction. Without deciding whether the writ will ever lie to restrain such a claimed excess, it may safely be stated as a fundamental proposition that if jurisdiction was not exceeded by the Industrial Commission, the writ will not lie.
Kenneth Ewan was a young man, 20 years of age, and in good health at the time of his injury. At the beginning and during most of the 12-month period preceding the injury his wage was comparatively small, only $15 per week. At the end of that period his weekly wage had increased to approximately $50. It is thus apparent that with experience and his approach to maturity, he succeeded in increasing his earnings markedly. The commission found that the average weekly wage could not be justly determined by applying the regular provisions of Section 1465-84, that is to say by using the actual average weekly wage for the year prior to the injury as the basis for computing compensation; and further found that the circumstances concerning claimant's earnings were such as to clearly warrant the fixing of the basic average weekly wage at $27, by authority of the provisions of the statute above quoted.
A factual basis warranting respondent's action is all that the statute requires. The giving of specific reasons is not necessary; nor is an express finding, as to what definite fact or special circumstances exist justifying the commission's action, an essential prerequisite to the lawful fixing of an average weekly wage under the last paragraph of Section 1465-84. When a factual basis for the exercise of the commission's discretion is shown by the record, nothing more is necessary and the action of that body cannot be said to be beyond its power. In the instant case facts warranting the action of the commission are so shown and there was no excess of jurisdiction.
The writ of prohibition is therefore denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL and TURNER, JJ., concur.