eNotes: Workers’ Compensation – July 2023 – Pennsylvania

SIGNIFICANT CASE SUMMARIES

Pennsylvania Case Summaries

Barnes v. School District of Philadelphia (WCAB)
Commonwealth Court of Pennsylvania
No. 55 C.D. 2022

Decided: June 26, 2023

When a Claimant sustains two separate work injuries for two separate employers and recovers from the first injury, the Claimant is still entitled to concurrent indemnity benefits if the second injury continues to render him/her disabled from returning to the job where he/she sustained the first injury.

Background

The Claimant in this case sustained two work-related injuries while working for two separate, but concurrent, employers. The WCJ found that as of February 12, 2019, the Claimant had fully recovered from the first injury sustained while working for the concurrent employer, Comhar, Inc. As such, the WCJ reduced the Claimant’s weekly indemnity rate as of the date of said full recovery, so as to not account for the concurrent wages from Comhar, Inc. The WCAB affirmed the WCJ’s holding.

Holding

The Court reversed the Board’s holding. Even if the Claimant had fully recovered from the first injury sustained while working for Comhar, Inc., he was unable to return to work there because he was disabled from the second injury sustained while working for the instant employer. The Court cited to Miller v. WCAB (Midalantic Coast Delivery System), 661 A.2d 916 (Pa. Cmwlth. 1995), wherein it held “[W]here a Claimant holds more than one job at the time of a work-related injury, the [AWW] must be calculated based on the wages from all of his or her jobs, whether the Claimant is disabled from the other jobs or not, in accordance with [s]ection 309(e) of the [WC] Act. Where the Claimant is not disabled from the other jobs, however, it is proper to place the Claimant on partial disability, reducing the total disability benefit by the wages earned from the jobs from which the Claimant is not disabled.” Here, the second injury rendered the Claimant disabled from both jobs. The full recovery from the first injury thus had no bearing on his entitlement to concurrent employment indemnity benefits.

Takeaway

A Claimant is entitled to concurrent employment indemnity benefits where the work injury disables the Claimant from returning to work for the concurrent employer.

Questions about this case can be directed to Cailey Farinaro, Esquire at (610) 332-7008 or cfarinaro@tthlaw.com.

Intertek USA, Inc. v. Amol Hate (W.C.A.B.)
Commonwealth Court of Pennsylvania
486 C.D. 2022

Decided June 14, 2023

When a Claimant returned to full duty but was terminated for cause after a car accident, he was still entitled to ongoing benefits because he continued to experience a loss of earning capacity.

Background

The Claimant filed a Claim Petition alleging a work related injury to his right shoulder occurring on October 1, 2019 as a result of cumulative trauma. The Claimant continued to work his full duty job and was subsequently involved in an alleged work-related motor vehicle accident on July 14, 2020. He reported the motor vehicle accident reported to his Employer that day. On July 16, 2020, the Claimant advised his Employer that he was going to require surgery and was going to be out of work for several months. The Employer terminated the Claimant’s employment that day, citing the July 2020 car accident.

The WCJ granted the Claimant’s Claim Petition, but only awarded benefits after August 21, 2020, the date of the Claimant’s surgery, because he was terminated for cause. The WCJ found that the Claimant’s loss of earning power until the date of his surgery was due to the termination, not the work injury. The Employer appealed to the Workers’ Compensation Appeal Board, who affirmed the findings of the WCJ. The Employer then appealed to the Commonwealth Court, arguing that it should not have remained liable for making indemnity payments to the Claimant after he was terminated for cause.

Holding

The Commonwealth Court affirmed the decision of the Workers’ Compensation Appeal Board. The Court acknowledged that the Claimant was disabled due to a work-related injury and continued to experience a loss of earning capacity after his August 21, 2020 surgery, regardless of his termination from his employment. Agreeing with the WCJ, the Court indicated that the Claimant became fully disabled with consequential loss of earning power and unable to perform his job after the date of his surgery.

Takeaway

While termination for cause can be a defense to payment of indemnity benefits by asserting that the loss of earning power is due to the termination, and not the work injury, be prepared to show that work would have been available but for the claimant’s termination to cap the ongoing exposure when asserting the defense.

Questions about this case can be directed to A. Catherine McLaughlin, Esquire at (412) 926-1421 or cmclaughlin@tthlaw.com.