Pennsylvania Workers’ Compensation Lawyer Blog

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 Pennsylvania workers’ compensation, physical and mental injuries are treated very differently.  Is that fair?  Probably not, but that is the law with which we are left.

A physical injury, like a herniated disc in the neck or back, a rotator cuff tear in the shoulder or a ligament tear in a knee, are compensable under the PA Workers’ Compensation Act (Act), as long as the injured worker was within the scope and course of his or her employment at the time of the injury.  A mental injury, like post-traumatic stress disorder (PTSD), anxiety or depression, on the other hand, must be due to “abnormal working conditions” to be compensable (unless resulting from a physical injury).

It is the interpretation of this phrase, “abnormal working conditions,” upon which such a case turns.  As the court decisions have taught us, that phrase is very fact specific.

There are two situations when an employee hurt at work in Pennsylvania is entitled to workers’ compensation benefits.  The first, which encompasses the vast majority of cases, is when the employee is “actually engaged in the furtherance of the [employer’s] business or affairs . . . .”  This is true whether the injury takes place on or off the premises of the employer.  On the other hand, the second is when the employee is not actually engaged in the furtherance of the employer’s business or affairs.  In that situation, the analysis is one based on a 1977 Pennsylvania Commonwealth Court case called Workmen’s Comp. Appeal Bd. (Slaugenhaupt) v. United States Steel Corp (and generally known as the “Slaugenhaupt test”).

Under the Slaugenhaupt test, the injured worker must prove that he or she “(1) is on a premises under the control of the employer; (2) is required by the nature of his employment to be on such premises; and (3) sustains an injury or injuries due to a condition of the premises or operation of the business.”  All three of these requirements must be met.  Parking lot cases (so, before or after work) are always fact-specific, given this analysis.

A recent case decided by the Commonwealth Court of PA addressed this issue.  In Lewis v. Lehigh Asphalt Paving & Construction Co. (Workers’ Compensation Appeal Board), the employee felt some pain and weakness in his left calf and ankle while working.  He finished his shift and clocked out.   About 15 minutes after clocking out, he got into his work truck to go home.  As he pushed off his left foot to get into the truck, he felt a pop in his lower leg (which was the Achilles tendon tearing).  He sought medical care, and provided notice to his employer, that same day.