One of the most important determinations in any PA workers’ compensation case is the Average Weekly Wages (AWW). As we have explained in prior blog posts, if an injured worker has been employed for over a year, and is not paid a fixed amount each pay period, the AWW is determined by dividing the year prior to the date of injury into four quarters. The top three of those quarters are then averaged. This is the AWW. The compensation rate is calculated from this figure.
For years, the Pennsylvania appellate courts have held that periods of lay off count within this calculation. The Courts have said that the “employment relationship” continues through the lay off. This often leads to a deflated AWW for an injured worker unfortunate enough to have undergone periods of lay off in the year before the injury (since those periods of lay off would be a zero for each pay period). Recently, a PA workers’ compensation insurance carrier tried to use this sword as a shield.
In Resources for Human Development, Inc. and Gallagher Bassett Services v. Sherry Dixon (Workers’ Compensation Appeal Board), the injured worker was employed by Resources for Human Development, Inc., as a home health aide. The injured worker suffered a “strain or tear” to her “multiple trunk” (their word usage, not ours) when a patient fell on her. Since the injured worker also was employed by Public Partnerships, LLP, she filed a Review Petition alleging that she had concurrent employment (so the AWW would be based on earnings from both of those jobs).
In defending the petition, the workers’ compensation insurance carrier alleged there was no “concurrent employment,” since the injured worker did not perform both jobs on the same day. Importantly, during the litigation, the injured worker testified that each of the two jobs was full-time and that the job with Public Partnerships existed before the work injury and continued after the work injury. Upon hearing the evidence, the Workers’ Compensation Judge (WCJ) granted the Review Petition, finding concurrent employment.
This was affirmed by the Workers’ Compensation Appeal Board (WCAB), who noted, “ . . . Claimant’s longstanding and ongoing employment with Public Partnerships constituted concurrent employment.” Upon further appeal, the Commonwealth Court of Pennsylvania also affirmed the decision of the WCJ.
Our loyal readers may recall our post from 2019 concerning the Kurpiewski v. Workers’ Compensation Appeal Board (Caretti, Inc.) case, where the Court found that jobs an injured worker held during periods of lay off did NOT constitute concurrent employment. While not addressing that case specifically, the Court here pointed out the significance of the second job being held both before and after the time of the work injury.
The question, said the Court, is whether the second job is “ . . . sufficiently intact such that the claimant’s past earning experience remains a valid predictor of future earnings loss.” Whether the injured worker worked both jobs on the specific date of injury is irrelevant. The question is whether the employment relationship remained intact throughout. As the Court concluded:
“Even though Claimant may not have worked her Public Partnerships job on the day she was injured, there can be no reasonable argument that her employment relationship with Public Partnerships was not “sufficiently intact,” id., when the work injury occurred in December 2018, where the credited evidence showed that this relationship existed prior to her work with Employer, while she worked for Employer, and after she stopped working for Employer.”
While we continue to believe including periods of lay off in the AWW calculation (without also accounting for unemployment compensation benefits or other work earnings received during those periods) is patently unfair, at least the Court drew a line. It seems ridiculous a PA workers’ compensation insurer would even try to argue against concurrent employment in a situation like this one.