PA Commonwealth Court Sheds Light on Preexisting Conditions and Average Weekly Wage Calculation

When the Commonwealth Court of Pennsylvania decides a case in the PA workers’ compensation arena, we often get some insight into an aspect of the law, or an interpretation of a section of the Pennsylvania Workers’ Compensation Act (Act).  Rarely do we see a case address two areas of significance.  So, when the Commonwealth Court issued a decision recently in the Kurpiewski v. Workers’ Compensation Appeal Board (Caretti, Inc.)  case, we were very excited.  We get to talk about preexisting conditions as well as calculation of the Average Weekly Wage.

Let us start first with the issue of preexisting conditions.  There is no doubt that you are entitled to workers’ compensation benefits in PA if your work duties, or work injury, aggravate a preexisting condition, whether that underlying condition is work-related or not.  We see this often with asthma, allergic reactions, arthritis and degenerative disc disease in the neck or back.  Indeed, this is such a basic concept, and comes up so often, that it is covered in the Medical FAQ section of our website.

Where things get messy is when the workers’ compensation benefits will be terminated.  As described in a previous blog post, generally speaking, the Courts will say benefits stop when an injured worker returns back to baseline with the underlying preexisting condition (even if that baseline leaves the injured worker advised not to return to his or her regular job, due to a fear of another aggravation).  The exception to the rule is when the underlying condition is also work-related, as in the previous blog about the Little case.  In that situation, workers’ comp benefits continue, since it is the work injury (not a non-work-related underlying condition) which prevents a return to the regular employment.

All of this brings us back to the Kurpiewski v. Workers’ Compensation Appeal Board (Caretti, Inc.) case.  Here, Mr. Kurpiewski was a union bricklayer for many years.  Exposure to chromium, a compound contained in bricks, concrete, and mortar, caused an allergic reaction with Mr. Kurpiewski.  After he developed the reaction, and had to wear gloves while handling the bricks, he began working for this employer.  His condition deteriorated to the point that he was advised to leave his occupation.

He filed a Claim Petition, which was granted by a Workers’ Compensation Judge (WCJ).  Workers’ comp benefits were ordered to be paid through the present and ongoing.  On appeal, the Workers’ Compensation Appeal Board (WCAB) reversed the order granting ongoing benefits.  The WCAB agreed with the Employer that the work injury was only the aggravation (and not the underlying condition itself), so once Mr. Kurpiewski returned to baseline, benefits should be stopped, even if he still could not return to work as a bricklayer.  Essentially, the Employer argued successfully that Mr. Kurpiewski developed the allergic reaction at a prior employer.  So, that was a preexisting condition unrelated to this injury.

This termination of benefits was reversed by the Commonwealth Court.  If Mr. Kurpiewski had developed the allergy while working for Employer, there would be no doubt benefits would continue.  The Court could not see any reason to distinguish that the underlying condition developed with a different employer (albeit in the same occupation).  The underlying condition, without doubt, was work-related.  As such, benefits should continue, since the work injury prevented Mr. Kurpiewski from returning to his profession.

We next turn to the second issue, the Average Weekly Wage (AWW).  Under the Act, where an injured worker was employed for more than three consecutive quarters, the AWW is to be determined by averaging the highest three of the previous four quarters.  Where this one often becomes an issue is when there are periods of layoffs.  As we have previously addressed in our blog, the PA Courts have told us that periods in which an employee is laid off still counts in maintaining an “employment relationship,” so we occasionally see periods of layoffs artificially reduce an injured worker’s AWW.

In the case we are discussing, Mr. Kurpiewski went through periods of layoffs.  The difference here is that Mr. Kurpiewski would work for other employers during these layoffs.  This was different than the usual situation, since he was then working for someone else.  Surely this would stop the “employment relationship” with Employer, right?  Not so fast, said the Court.  Regardless of whether he worked for other employers during the period of layoffs, the employment relationship with Employer still continued.  The periods of layoffs still counted, since the employment relationship with Employer continued (leaving him with shortened, or lowered, quarters of wages).

So, then Mr. Kurpiewski said, fine, then we have to count the wages earned with the other employers, during the layoffs, right?  After all, those then become earnings from “concurrent employment,” since he apparently had multiple “employment relationships” at once.  While perfectly logical, the Court rejected this argument as well.  The Court said the other employers he worked for during periods of layoffs could not be considered “concurrent employment,” because he was not working for these employers at the time of the injury.  Where we fail to understand the logic of the Court, and it appears ridiculously prejudicial to the injured worker, is the wide open interpretation of “employment relationship” during a period of layoff, but a strict and tight interpretation when talking about the other employers.  This is very frustrating for attorneys who represent the injured worker in PA, and difficult for us to reconcile with how the Act is intended to benefit the injured worker.

The Court also reversed an attempt by the WCAB to impose a penalty on the Employer, saying that is solely at the discretion of a WCJ, but we’ll have to discuss this in a later blog!