Pennsylvania court clarifies concurrent employment issues in workers' comp claims
How are average weekly wages calculated when that injured worker is juggling multiple jobs?
The Pennsylvania Workers’ Compensation Act is a remedial statute intended to benefit Pennsylvania’s workers, which Pennsylvania courts have liberally construed to effectuate this objective. Under the Act, when an employee is injured on the job and cannot work, they are entitled to wage-loss benefits. Wage-loss benefits are a calculation of a claimant’s average weekly wage (AWW). To give a reasonable calculation of pre-injury earnings to project both future earnings and a loss of earnings, a claimant’s AWW is based on the 52 weeks of earnings leading up to their work injury and determines the compensation rate paid after the injury.
Calculating AWW is fairly straightforward when an injured worker has one job and was injured while working at that job. But what about when that worker is juggling multiple jobs?
Section 309(e) of the act provides that “where the employee 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.” Importantly, an injured worker need not be disabled from their concurrent job for their earnings from that job to be factored into their AWW.
Even with decades of case law on the subject, the Pennsylvania Commonwealth Court in Resources for Human Development v. Dixon (Workers’ Compensation Appeal Board), No. 494 C.D. 2022 (Dec. 20, 2023), recently provided new guidance as to what constitutes concurrent employment when calculating an AWW based on earnings from more than one employer.
Before I discuss Dixon, it’s important to recap notable Pennsylvania case law regarding what constitutes “concurrent employment” under Section 309(e).
In 1987, the Pennsylvania Commonwealth Court in Freeman v. Workmen’s Compensation Appeal Board, 527 A.2d 1100 (Pa. Commw. Ct. 1987), held that for an injured worker to receive an AWW calculation that includes earnings from more than one employer, the worker must have had more than one employer “at the time of injury.”
About a decade later, in Hoffman v. Workers’ Compensation Appeal Board (Acme Markets), 716 A.2d 711 (Pa. Commw. Ct. 1998), the Commonwealth Court held that concurrent employment does not require an injured worker to be actively working both jobs “at the time of injury.” In that case, the claimant was a full-time school bus driver during the school year, but was injured during his summer employment at a grocery store. A representative of the school bus company that employed him testified that their drivers’ positions were seasonal, they were laid off over the summer but not terminated, and bus drivers were asked in June if they intended to return to work at the start of the upcoming school year. Thus, the Commonwealth Court held the claimant had concurrent employment even though he was not driving buses during the summer.
Finally, a few short years later, the Pennsylvania Supreme Court in Triangle Building Center v. Workers’ Compensation Appeal Board, 746 A.2d 1108 (Pa. 2000) (Linch), held that “in order for an employment relationship to constitute concurrent employment for purposes of Section 309(e),” and to permit a higher AWW, “the relationship must remain sufficiently intact such that the claimant’s past earning experience remains a valid predictor of future earnings loss.”
In that case, the court held that concurrent employment existed for a claimant injured at a job he was working while he was temporarily laid off from another job. He had worked at that other job for seven years, he was temporarily laid off several times but was never terminated from that job, and returned to work when work was available (because he was required to call that employer daily to maintain the work relationship, which he did).
Guidance on ‘sufficiently intact’ employment
Despite these clear principles and the seemingly straightforward application of Section 309(e) by Pennsylvania courts, employers and insurers have continued to challenge what constitutes “concurrent employment” in a transparent effort to limit injured workers’ AWW to prevent them from receiving the maximum compensation permitted by the act. In Resources for Human Development v. Dixon (Workers’ Compensation Appeal Board) — a case in which my firm represented the claimant Sherry Dixon—the Pennsylvania Commonwealth Court continued Pennsylvania courts’ liberal application of Section 309(e) and provided helpful guidance for determining what constitutes concurrent employment.
Dixon was a home health aide in December 2018 when she was injured when a patient fell onto her. At that time, Dixon had also been working as a private duty home health aide for five years with another company, where she continued to work after sustaining her injury because that job was less demanding. Her employer accepted her claim of injury, but calculated her AWW as $520 based only on her work with the employer and not her concurrent employment with the other company.
Dixon sought to include her wages as a private duty home health aide within her AWW as concurrent employment during the time of injury. The matter was assigned to a workers’ compensation judge (WCJ) before whom Dixon testified about her concurrent employment and provided evidence of such that included AWW calculations for that concurrent employment. The WCJ ruled she should have received an AWW calculation based on her concurrent employment and found the proper total AWW to be $1,675.46.
The employer appealed to the Workers’ Compensation Appeal Board (WCAB). The WCAB affirmed the WCJ’s decision, noting that “the employee need not be disabled from the concurrent job to require inclusion of the wages in the calculation of the average wage.” When a claimant is not disabled from other jobs, however, the claimant’s total disability benefit is usually reduced by the wages earned from the jobs from which the claimant is not disabled. But for reasons unknown, the employer here did not argue that Dixon’s benefits should have been reduced by the wages she earned working as a private home health aide. The employer argued instead that she was not concurrently employed when she was injured.
The employer then petitioned the Pennsylvania Commonwealth Court to review the WCAB’s decision. The employer’s primary argument was that, under Section 309(e) and the employer’s interpretation of “concurrent employment,” Dixon was required to work both jobs on the day she was injured in order to receive an AWW that included both jobs.
The Commonwealth Court quickly dispensed with the employer’s argument, stating that it reflected a misreading of Section 309(e) and was contradicted by case law. The court observed that in Hoffman and Linch, which I described above, the claimants were found to have concurrent employment at the time of their work injuries even though they were not actually “working” at those other jobs on the days they were injured.
Against this backdrop, the Commonwealth Court held that Dixon’s employment as a private duty health aide “was unquestionably ongoing,” and thus, her concurrent employment was “sufficiently intact.” The court also agreed with the WCAB’s analysis that the case law interpreting the meaning of “concurrent employment” under Section 309(e) did not require Dixon to have been working as a private duty health aide on her actual day of injury to receive a higher AWW.
The takeaway
It is not uncommon for employers to do what Dixon’s employer did to her here: Ignore the earnings an injured worker receives from other jobs when calculating an AWW in connection with an injury the worker suffered while on the clock with them.
But the Commonwealth Court’s ruling here concerning what a “sufficiently intact” relationship with a concurrent employer looks like is encouraging for those workers juggling multiple employers at the time they were injured while working one of those jobs—even if they are not actively “working” for their other employers. Injured workers with one or more jobs, and their workers’ compensation counsel, should scrutinize their employer’s AWW calculations to ensure they include earnings from their other jobs.
If the calculations do not, the Commonwealth Court’s decision here provides guidance and a solid legal basis for challenging those calculations until they include wages for each employer.
Melissa R. Chandy is a partner in the workers’ compensation practice at Pond Lehocky Giordano, the largest workers’ compensation and disability law firm in Pennsylvania, and one of the largest in the United States. She can be reached at mchandy@pondlehocky.com.
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