Although claimant cannot be working with a concurrent employer on date of work injury with another employer, the relationship with the concurrent employer was sufficiently intact that concurrent wages must be included in calculating average weekly wage.

The claimant sustained an injury on December 29, 2018, while working as a home health aide. The claim was accepted by the employer, and the claimant began receiving benefits at the rate of $468 per week, based on an average weekly wage of $520. Later, the claimant filed a review petition, alleging her average weekly wage (AWW) did not include wages from concurrent employment as a private duty home health aide with another company. 

During her testimony before the workers’ compensation judge, the claimant testified she had worked for the other company for five years and could not recall if she worked that position on the day she was injured. The judge granted the review petition, and the employer appealed to the Workers’ Compensation Appeal Board, which affirmed.

On appeal to the Commonwealth Court, the employer argued that the increase in the claimant’s AWW to include her concurrent wages was erroneous because there was no evidence the claimant was concurrently employed at the time of her injury, i.e., the date of injury. The court rejected the employer’s argument and dismissed the appeal. According to the court, the employment relationship with the concurrent employer was sufficiently intact and, although the claimant may not have worked her concurrent job on the day she was injured, the evidence showed the relationship existed before her work with the employer, while she worked for the employer and even after she stopped working for the employer. 

_{What’s Hot in Workers’ Comp, Vol. 28, No. 2, February 2024, is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}