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The facts of both cases are similar. There was an accepted work injury. Claimant returned to work and within 12 months of the return to work sustained a second work injury. The problem is calculating the average weekly wage for the second injury.
This is illustrated by the actual wages in Colpetzer:
The wages illustrate a significant difference between the first and fourth periods where claimant worked 13 weeks each and the second and third periods where claimant was off work for a number of weeks due to the first work injury.
Initially, the Workers’ Compensation Judges decided the cases differently. In Colpetzer, the WCJ considered claimant employed during all calendar quarters and thus used the highest three quarters average to arrive at the average weekly wage figure. The Board affirmed and the Commonwealth Court reversed. The Court agreed claimant was employed during all four calendar quarters but stated that the aim of Section 309 is to establish an AWW which reasonably reflects the reality of the claimant’s pre-injury earning experience as a predictor of future earning potential. Thus, the Court calculated AWW for the second injury by adding AWW for the first injury for all weeks claimant was off work. This would significantly raise the AWW number for the second injury.
In Zerby, the WCJ held Section 309(d.1) applied. This is the Section that applies to wage calculations where a claimant does not work four full calendar quarters prior to injury. In this circumstance, the average wage of the highest calendar quarter where claimant worked 13 weeks is used. The Board affirmed but remanded for an unrelated matter. The employer appealed and the second time the Board heard the case, they reversed holding that claimant remained employed and averaged three quarters to arrive at the AWW. The Commonwealth Court initially affirmed. On reconsideration, they reversed and used the Colpetzer method to calculate the AWW for the second injury.
Both decisions were consolidated and heard by the Supreme Court. In a decision issued on March 30, 2005, the Court affirmed the Colpetzer calculation method. The Court concluded that an accurate computation of the claimant’s AWW requires that the artificially depressed wages received because of a prior compensated work injury cannot be included in the computation of the AWW for the second injury. The Court emphasized the Act was not designed to punish a worker merely because a work calamity befell him. The Court concluded that workers in Colpetzer and Zerby are not better off financially for having been injured but neither are they being punished for a factor directly affecting their earning capacity.
From an employer’s perspective, this decision creates more problems than it solves. The decision represents judicial legislation. The Act clearly states AWW is calculated by dividing by 13, wages earned during a given calendar quarter. Nowhere does the Act allow for the inclusion of other benefits or AWW from a prior injury. The Court recognizes that the Act was silent on this issue but concludes its decision conforms with the intent of Section 309. Contrary to the Supreme Court’s assessment, in the vast majority situations, claimant will be financially better off due to a prior injury if he sustains a second injury within 12 months of his return to work. This calculation of AWW is to the extreme benefit of the claimant. The AWW will change by hundreds of dollars. However, the fact is that given today’s economy, many employees’ wages are not going up. There is less overtime and less bonuses. Using a past AWW will artificially inflate such wages.
There is also a problem as to how far the Colpetzer/Zerby decision applies. If a claimant is laid off and receives total disability benefits, does the average weekly wage for a first injury get added into the calculation for the second injury? If claimant is partially disabled so that he receives both wages and modified benefits, do you ignore the wages and use the AWW? Claimant’s attorneys are arguing that the Colpetzer/Zerby decision mandates use of the first AWW in these situations. We are arguing for a much limited approach.
In conclusion, the Colpetzer/Zerby method of calculating AWW will provide for an increased average weekly wage for a claimant when a second injury occurs within 12 months of his return to work following initial injury. However, we will argue that this decision is limited to the situation presented by the claimants in Colpetzer and Zerby and should not be expanded. Moreover, we anticipate legislation addressing this issue where the Court noted that the legislature was completely silent on this matter.
In Guard Insurance, the Court upheld the Act allowing for the apportionment of benefits. The Court outlined that there are three scenarios when benefits should be apportioned. First, when two injuries both cause total disability. Secondly, when it is impossible to determine which injury causes total disability. Thirdly, apportionment applies when the first injury causes partial disability and the second injury causes total disability.
The more problematic issue is how to apportion medical bills in such scenarios. The claimant’s bar has been arguing that the WCJ should find one carrier primarily responsible for payment of medical bills and that carrier should obtain reimbursement for 50% bills from the other liable carrier. This places an onerous burden on the first carrier. Moreover, is the first carrier entitled to reimbursement for costs in filing URO or obtaining bill review and reduction? Is the second carrier entitled to bills on proper forms? However, the confusion is not completely resolved if both carriers are 50% liable and pay bills separately? In this scenario, what would happen if the first carrier files utilization review and the second carrier pays the bill? Is only 50% of the treatment unreasonable? Again, we anticipate future legislation to further clarify these issues.