Monday, February 23, 2015

Concurrent Employment in PA Workers’ Compensation

As more and more people are working multiple jobs, it is not unusual for workers’ compensation lawyers to hear the question: “I was injured at my part-time job, will workers’ comp also pay for lost wages from my full-time job?”

Thankfully, in Pennsylvania the answer is yes.  People who work multiple jobs and are injured at one of the jobs are eligible to be paid wage loss benefits which include the lost wages from both jobs.

The Pennsylvania Workers’ Compensation Act provides “[w]here the employe [sic] is working under concurrent contracts with two or more employers, his wages from all such employers shall be considered as if earned from the employer liable for compensation.”  77 P.S. § 582(e).  This area of the law has developed from the difficult and confusing statutory and case law surrounding pre-injury average weekly wage (“AWW”) calculations.

Some explanation is appropriate.  In short, workers’ compensation “disability” is synonymous with “wage loss.”  The Workers’ Compensation Act seeks to provide a wage loss benefit, described as a total disability benefit or a partial disability benefit, based on how much an injured worker can earn after she is injured on the job.  If she is totally disabled, and she is not released to return to work by her doctor in any capacity, she is generally entitled to total disability benefits, which are frequently calculated to be two-thirds of the workers’ pre-injury average weekly wage.  If she is released to return to some kind of work, with medical restrictions, and can earn something, but not as much as she earned prior to the injury, she is generally entitled to partial disability benefits, which last up to 500 weeks.  Partial disability is calculated by subtracting current earnings from the pre-injury average weekly wage, and multiplying the difference by two-thirds.

It is plain to see that the pre-injury average weekly wage is a highly important figure, essential to correctly calculate an injured workers’ wage loss benefit.  In Pennsylvania, when a worker is injured at one of his jobs, the pre-injury average weekly wages of all of his then-current employers is added together to yield the correct measure of his pre-injury earnings experience, and total or partial disability is then calculated based on that combined average weekly wage.  The workers’ compensation benefit is paid by the carrier insuring the time-of-injury employer.  If the injured worker can resume one of the jobs but not another, then partial disability should be appropriately paid.

Interestingly, this can mean that the insurance company which insures a part time employer might pay far more in wage loss benefits than the actual wages from the part time job, when the injured worker can no longer work his full time job due to the injury.

Not all injured workers in the United States are so lucky.  In some states, injured workers can only be paid based on the earnings from their time-of-injury jobs, and not their concurrent employment.

This article cannot hope to cover all of the intricacies of AWW calculations, concurrent employment considerations, or total or partial disability calculations.  These are complicated concepts, and even experienced workers’ compensation adjusters and lawyers can miss minor details or nuances which can alter the outcome of an injured workers’ claim by thousands of dollars.  Pennsylvania Workers’ Compensation is a specialized area of practice, and is filled with unexpected twists and turns.  Employers are typically provided lawyers by their insurance companies who only practice workers’ compensation law.  Injured workers are well-advised to consult experienced workers’ compensation claimant’s attorneys when they have had a work injury.  Although Pennsylvania is better than some states in this arena, the potential levels of complication leave too many pitfalls for the unwary.  It is best to involve competent counsel early on in the process, to make sure all of the client’s rights are protected.

Wednesday, January 14, 2015

Changes to Pennsylvania’s Power of Attorney Law – What you need to know for the New Year

On January 1, 2015, significant changes went into effect for Power of Attorney documents drafted in Pennsylvania. For anyone who deals with these documents in any capacity, it is important to know that these changes are coming and what impact they will have.  

To give a brief history on this, on July 2, 2014, Governor Tom Corbett signed into law as part of Act 95 of 2014, House Bill 1429, provisions creating changes to Chapter 56 of the Decedents, Estates and Fiduciaries Code, which are the laws that govern Powers of Attorney in Pennsylvania. These changes were made in response to several events; in particular, to overturn the Pennsylvania Supreme Court’s decision in Commonwealth v. Vine, 9 A.3d 1150 (2010) through the legislative process.

 In the Vine matter, a wife executed a Power of Attorney (POA) giving her husband authority to act on her behalf. The husband used the POA to make changes to his wife’s State Employees Retirement System (SERS) account. Several years after the couple divorced, the wife discovered that her husband made changes to her retirement account and confronted SERS. She claimed that she was incapacitated when she signed the POA, and argued that SERS was not able to rely on the authority the POA conveyed to her husband. All the parties agreed that the POA was invalid; however, both the SERS dispute board and the Commonwealth Court agreed that under the language of the POA law, SERS could not be liable, because it relied in good faith on the POA that it believed was valid at the time. 

The Pennsylvania Supreme Court heard the case and reversed the Commonwealth Court’s decision. It held that since the POA was not valid, the liability protection under the POA law at the time did not apply to SERS.

This decision essentially put any agent acting under a POA in the impossible position where he or she would have to prove the competency of the principal any time they would present the POA to a third party. Therefore, the Pennsylvania legislature stepped in and changed the law to in an attempt to solve this, and other problems, with the then-current Power of Attorney law.

Revisions to the law provide that if a third party, in good faith, accepts a power of attorney without actual knowledge of the power of attorney being void, invalid, terminated, or that the agent is exceeding or improperly exercising his or her authority, that third party will not be subject to civil liability. Please note that this section actually went into effect when Governor Corbett signed HB 1429 into law. 

In addition, it is important to know that while these changes create third party immunity from civil liability, they also provide for sanctions to a third party who refuses to accept a proper power of attorney. As a third party, if an agent presents a power of attorney to you, you are entitled to ask for the agent’s certification under penalty of perjury, a translation (if it is in another language), and an opinion of counsel as to whether the agent is acting within the given scope of authority. Then, the third party has 7 business days after presentation of the POA to accept it, or request an affidavit, certification, translation, or opinion of counsel; and then has 5 business days to accept after receipt of additional requested information (or provide a “substantial basis” for making an additional request). If the third party refuses to accept a POA and does not meet any of these conditions, then the law states that the third party shall be subject to civil liability for “pecuniary harm to the economic interests of the principal proximately caused by the person’s refusal to comply with the instructions of the agent… and a Court Order mandating acceptance of the POA.” 20 Pa.C.S. 5608(3).  

In addition to potential sanctions, the revisions of the law explicitly provide that a third party cannot require different or additional forms. As an Estate Planning practitioner, I have seen on a number of occasions institutions refusing to honor a POA on the basis that they would only accept POAs on their institution’s form. This was not only frustrating for the principal who thought he or she was planning ahead by having a properly drafted and executed POA, but also to the agent, who was just trying to take care of the principal. From my perspective, this is a welcome revision.

There are other revisions in the requirements for drafting and executing POAs, but the greatest impact will probably be seen with the requirement of 8 powers for which a principal must specifically grant authority, which are as follows: 1. Create, amend, revoke, or terminate an inter vivos trust; 2. Making gifts; 3. Create or change rights of survivorship; 4. Create or change a beneficiary designation; 5. Delegate authority granted under the POA; 6. Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; 7. Exercise fiduciary powers that the principal has authority to delegate; and 8. Disclaim property. Since these powers need to be specifically granted, during the drafting process, principals will be forced to carefully consider what exactly they want their agent(s) to have the ability to do. Quite frankly, no principal should ever sign a power of attorney without carefully considering and understanding what type of authority it grants to another.

If you have any questions about a Pennsylvania Power of Attorney, whether you are a third party being asked to honor one, or you are trying to complete your estate plan, or you are an agent trying to act on behalf of a principal, you should consult with legal counsel. 

Jessica R. Grater, Esquire, is an attorney with the law firm of Wolf, Baldwin & Associates, P.C., with offices in Pottstown, West Chester, and Reading. Ms. Grater concentrates her practice in Wills, Estates, Probate, Orphans’ Court, and Social Security Disability, and litigation related to such matters. She may be reached at 610-323-7436 or by e-mail to