PERIODS OF LAY-OFF INCLUDED WITHIN THE ONE YEAR LOOK BACK TO DETERMINATE WEEKLY WAGE
The Pennsylvania Supreme Court has on a matter of first impression recently ruled that that periods of periodic lay-off are included in a one year "look back" to determine average weekly wage under Section 306(d)(2). Accordingly, the average weekly wage is to be calculated by including periods of periodic layoffs and averaging the weekly wages earned in the highest three of four immediately preceding work quarters provides an accurate estimation of the expected wages of the employee subject to lay-offs. Reifsnyder, et al. v. WCAB (Dana Corp.), 883 A.2d 537 (Pa. 2005); reargument denied, 889 A.2d 45 (Pa. Dec. 22, 2005) (Newman, J. dissent).

Nota bene:Always verify the basis for the calculation of average weekly wage with special attention to lay-off periods

AVERAGE WEEKLY WAGE CALCULATIONS (WHAT'S INCLUDED, WHAT'S EXCLUDED?)
Wages/Benefits Included

• Sickness and accident benefits. Shire v. WCAB (General Motors), 828 A.2d 441 (Pa. Cmwlth. 2003).
• Overtime. Harper and Collins v. WCAB (Brown), 672 A.2d 1319 (Pa. 1996).
• Vacation/holiday pay (prorate over 52 weeks or quarter in which paid). Corning, Inc. v. WCAB (Bryner), 684 A.2d 244 (Pa. Cmwlth. 1996).
• Bonus (prorated over 52 weeks). Lane Enterprises, Inc. v. WCAB (Patton), 644 A.2d 726 (Pa. 1994).

• Unexercised stock options. Scott v. WCAB (Crown Cork and Seal Company/ Ace American), 814 A.2d 298 (Pa. Cmwlth. 2003).
• Part-time wages which proceed full-time wages. Hannaberry HVAC v. WCAB (Snyder, Jr.), 834 A.2d 524 (Pa. 2003).
• Veterans benefits and Social Security benefits. Merva v. WCAB (St. John the Baptist R.C. Church), 784 A.2d 222 (Pa. Cmwlth. 2001).
• Self-employment. SWIS v. WCAB (Lombardi), 845 A.2d 987 (Pa. Cmwlth. 2004).
• Independent contractor wages. Streetline Express v. WCAB (Packer), 654 A.2d 649 (Pa. Cmwlth. 1995).

Nota bene: Always verify the basis for the calculation of average weekly wage with special attention to part time work prior to full time engagement

NOTICE OF ABILITY TO PERFORM WORK MUST BE PROVIDED PRIOR TO JOB OFFER LETTER
The Commonwealth Court ruled that when a Notice of Ability to Perform Work is sent after the Job Offer Letter is mailed, the Job Offer Letter is rendered invalid as a matter of law. Therefore, it is critical that any notice of ability to return to work must be issued prior to offer of employment. If the ability to return to work is not issued before that date, it will not serve as grounds for a modification or suspension of a claimant's benefits. Secco, Inc. and the PMA Ins. Group v. WCAB (Work), 886 A.2d 1160 (Pa. Cmwlth. 2005).

CLAIMANT’S DEATH PRIOR TO APPROVAL AT A HEARING FOR ENTRY OF COMPROMISE AND RELEASE AGREEMENT RENDERS THE AGREEMENT VOID
A decedent's estate could not force the approval of a Compromise and Release Agreement that was executed by the decedent before their untimely death. Accordingly, when a claimant has executed a Compromise and Release Agreement, but has died before the approval hearing, the Workers' Compensation Judge correctly can allow the employer to withdraw the Petition for Compromise and Release Agreement. Facchine, et al. v. WCAB (Pure Carbon Company and PMA Group), 883 A.2d 720 (Pa. Cmwlth. 2005), appeal denied, (Pa. Dec. 23, 2005); Fratta v. WCAB (Austin Truck Rental), 2006 W.L. 345001 (Pa. Cmwlth. Feb. 16, 2006).

Nota bene: Employer’s counsel controls the Compromise and Release Agreement and must move for its admission before the Worker’s Compensation Judge. Accordingly, Claimant’s counsel can not force the admission of agreement even if it is signed by the Claimant prior to Hearing.

THE COMMONWEALTH COURT HAS RULED THAT HEPATITIS(C) IS CONSIDERED AN OCCUPATIONAL DISEASE
A firefighter and an emergency medical technician are covered for a Hepatitis (C) contraction as a result of exposure to blood and other bodily fluids on the job. City of Philadelphia v. WCAB (Sites), 889 A.2d 129 (Pa. Cmwlth. 2005); City of Philadelphia v. WCAB (Cospelich), 2006 W.L. 335825 (Pa. Cmwlth. Feb. 15, 2006).

Nota bene: Employer’s in the health care field should be aware of the expansion of coverable diseases. Thus, enforcement of protective gear to prevent exposure is evermore critical.

PENALTIES WILL NOT BE ISSUED IF EMPLOYER FAILS TO PAY COMPENSATION AWARD DURING PENDENCY OF TIMELY FILED SUPERSEDEAS PETITION
The supersedeas rules of the Workers' Compensation Appeal Board provide a stay of the employer's obligation to pay an award during the 50/60 window during the pendency of a timely filed supersedeas petition. If a timely filed supersedeas petition is requested, the employer will not be in default of compensation payments for 30 days or more due to failure to make payment. Snizaski v. WCAB (Rox Coal), 891 A.2d 1267 (Pa. Feb. 22, 2006) (Newman, J. dissent).

Nota bene: Employer’s must “watch the clock” when a supersedeas petition is filed.

PROVISION OF COMPANY CAR IS AN EXCEPTION TO THE GOING AND COMING RULE
The Pennsylvania Supreme Court fact the employer agreed to provide a company car to worker is an exception to the going and coming rule in Pennsylvania. Accordingly, an employee who was killed in a motor vehicle accident while commuting to work was within the course of employment since the car was provided by the company. Therefore, all benefits were payable when decedent was on his way to the office using company provided car when death occurred in a motor vehicle accident. Wachs v. WCAB (American Office Systems and Donegal Mut. Ins. Co.), 884 A.2d 858 (Pa. 2005).

Nota bene: This is a new principle. If a company car is provided by an employer, there is a new contractual exception of workers compensation law. Thus, if Claimant is in a motor vehicle accident while in commute to work compensation will be due and payable, by the Employer.

ANY SEVERANCE PAYMENT TO EMPLOYEE WILL BE CONSIDERED AN OFF-SET FOR WORKERS COMPENSATION PURPOSES
Insurer may take off-set under Section 204(a) of the Workers' Compensation Appeal Board Rules against claimant benefits in the amount of a severance payment made by employer to the claimant. Kramer v. WCAB (Rite Aid Corp.), 883 A.2d 518 (Pa. 2005).

Nota bene: When paying any severance benefit, specifically note for the record in confirming correspondence that this is a set-off against any potential worker’s compensation payment.

NET INCOME FROM SELF-EMPLOYMENT DETERMINES CLAIMANT'S EARNING POWER FOR PURPOSES OF ASSESSING POST- INJURY EARNINGS
A Workers' Compensation Judge can accept testimony and other evidence of claimant's business expenses, therefore, the use of net earnings from self-employment as opposed to gross to determine post-injury earnings is permissible. Acme Markets, Inc. v. WCAB (Brown), 898 A.2d 21 (Pa. Cmwlth. Jan. 3, 2006).

PAYMENT OF MEDICAL BENEFITS AFTER STATUTE OF LIMITATIONS HAS EXPIRED DOES NOT EXTEND THE LIMITATION PERIOD
The Pennsylvania Supreme Court ruled that payment of medical benefits by the employer after a statute of limitations has expired does not extend the statute of limitations period of three years. Therefore, a review petition under Section 413 to add a psychiatric entry should have been used and statute of limitations under Section 413 applies. Westinghouse Electric Corp./CBS v. WCAB (Korach), 883 A.2d 579 (Pa. 2005).

SIXTY DAY WINDOW FOR IMPAIRMENT RATING VALUATION (IRE) FOR PURPOSES OF OBTAINING AUTOMATIC REDUCTION IN BENEFITS BEGINS ONCE EMPLOYEE HAS ACQUIRED 104 WEEKS OF TOTAL DISABILITY BENEFITS
The Pennsylvania Supreme Court, in two combined cases, held that an employer must comply with the 60 day window to request IRE to unilaterally change status to partial. After the 60 day period has expired, an IRE can still be requested, however the change in status must go through the administrative process between a Workers' Compensation Judge and is not an automatic requirement. Accordingly, a 60 day window for insurers to request IRE for reduction in benefits is an absolutely mandatory time limit. Gardner v. WCAB (Genesis Health Ventures and Walmart Stores, Inc. v. WCAB (Rider), 888 A.2d 758 (Pa. Dec. 28, 2005).

Nota bene: This is a critical clarification in the area of worker’s compensation. It is now critical to count the weeks to determine when an IRE is to be scheduled

Should you have any questions regarding this matter or any commercial litigation issues, please call or e-mail John P. Corcoran, Jr. at (412) 261-6400 or jpc@jpcg.com.