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When is employment truly concurrent?

The Miriam-Webster Dictionary defines ”concurrent” as: operating or occurring at the same time. “Not necessarily so!” says the Commonwealth Court. The definition is not to be strictly applied when defining employment under the Pennsylvania Workers’ Compensation Act.

In the case of Resources for Human Development, Inc. and Gallagher Bassett Services v. Sherry Dixon (Workers Compensation Appeal Board), 494 CD 2022 (December 20, 2023), the Court examined the issue of when employment is concurrent for purposes of calculating an individual’s average weekly wage (AWW) under the Act.

Sherry Dixon was working as a home health aide for Resources for Human Development (RHD) when she sustained an injury on December 29, 2018. A Notice of Temporary Compensation Payable was issued, listing her compensation rate as $468 based on an AWW of $520.  She filed a Review Petition alleging that the AWW did not include wages from her concurrent employment as a private duty home health aide with Public Partnerships (PP). Before the WCJ, she testified that she had worked for RHD for about 7 months when the injury occurred, working about 42 hours per week at $13 per hour. She was off work for 2 weeks after the injury and then return to modified duty with RHD until April 2019, when she stopped working for RHD due to increased pain and RHD’s inability to accommodate her work restrictions. She testified that she had also been employed by PP at the time of injury, working between 42 and 84 hours per week at $12 per hour. She had worked for PP for about 5 years, but could not recall if she actually worked for PP on the date of injury. Her work for PP did not require that she form physical tasks and so she was able to continue working for PP after her injury and after she ceased working for RHD.

The WCJ granted the claimant’s petition, noting that while the claimant may not have engaged in current employment on the very day of her work injury, such employment had been going on for a substantial period of time when the injury occurred. Thus, the WCJ found it appropriate to have those wages included when calculating the average weekly wage.

The WCAB firmed. RHD appealed to the Commonwealth Court, arguing that the WCJ’s decision was erroneous because Freeman v. WCAB (CJ Langenfelder & Son), 527 A. 2d 1100 (Pa.Cmwlth. 1987) requires the concurrent employment be at the time of injury and the evidentiary record was completely devoid of any evidence that would support that the claimant was concurrently employed at the time of her injury. Instead, claimant worked for PP prior to the injury and returned to work for PP after the work injury, but nothing shows she was employed by PP on the date of injury.

The Court disagreed. Concurrent means at the time of the injury. If the concurrent relationship is found to be intact, then earnings from the concurrent employer must be used in calculating the average weekly wage. The employee need not be disabled from the concurrent job to require inclusion of the wages in the calculation of the AWW. When the claimant is not disabled from the other job, it is proper to place the claimant on partial disability, reducing the total disability benefits by the wages earned from the job from which the claimant is not disabled.

Here, even though she was not working for PP on the date of her injury, Dixon continued to work for PP following both her work injury and her last day of employment for RHD. Thus, at the time of her injury, her concurrent employment relationship with PP was very much intact. Freeman does not require the claimant to have been working for PP on the actual day of injury to receive a higher AWW.  The WCJ’s finding that Dixon’s concurrent employment with PP was going on for a substantial period of time equates to a finding that the employment relationship was sufficiently intact to constitute concurrent employment. The credited of evidence showed that the relationship existed prior to her work was RHD, while she worked for RHD and after she stopped working for RHD. The decision of the Appeal Board was affirmed.

The Court referred to the Supreme Court’s decision in Triangle Building Center v/ WCAB (Lynch), 746 A. 2d 1108 (Pa. 2000) in which the Supreme Court noted that Section 309(e) of the Act was intended “to create a reasonable picture of a claimant’s preinjury earnings experience for use as a projection of potential future wages and, correspondingly, earnings loss.

Keep in mind that where, as here, an injured worker has concurrent employment from which he or she continues to receive earnings, those earnings should be used to calculate not only the AWW, but also the partial disability benefit owed to the claimant, thereby limiting the claimant’s entitlement to benefits to 500 weeks.