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.

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