A Tale of Two Paychecks: DE IAB Revisits Doctrine of Concurrent Employment

By Cassandra Roberts, Young Conaway Stargatt & Taylor LLP

It is not a novel proposition for those well-versed in workers' compensation law that when the injured worker holds two jobs and is injured on the one, you do not combine the wages from both jobs to ascertain his average week wage for purposes of establishing his disability benefit rate.  The wages from the job in which the claimant is injured are the ones used for wage calculation purposes, for better or for worse.  Definitely one of those rare, "employer-beneficent" concepts.

So what consideration is given, if any, to that second job, as it impacts the issue of disability?  In reply to that question, I heard from my friend and esteemed colleague Mike Galbraith last week.  Mike is a young attorney whose practice focuses on the representation of injured workers.  Mike brings to our attention this week a case from his office, Matthew Behornar v. Standard Distributing, IAB Hrg. # 1320260 (12/28/09).

The posture of this case was a Petition to Terminate total disability. Claimant worked two jobs at the time of injury, a full time job with Standard Distributing and a part-time job with the News Journal.  The injury occurred as a result of the full time position and warranted shoulder surgery, prompting the initiation of total disability benefits.

Light duty was not available at Standard Distributing but the nature of the work at the News Journal could accommodate a modified duty release and the performance of work activity with one arm.

Standard Distributing filed a Petition for Review based on the return to work at the News Journal and took the aggressive stance that not only had total disability ended, but further, it was entitled to a "credit" for the overpayment of TTD benefits based on the News Journal wages.

The claimant aptly replied that if his wages on the second job could not be factored into his wage calculation for disability, they should be considered on the issue of temporary total or temporary partial.  The Board agreed and stated: "The existing part-time job's income is not considered for the purpose of increasing claimant's workers' compensation benefit, so simple justice demands that it also not be considered for the purpose of reducing those benefits."

The Board also cited a case that is known by some, revered by a few, and overlooked by many.  Stanley Warner Corp. v. Slattery, 235 A.2d 633 (Del. Super. 1967) stands for the proposition that a claimant can be totally disabled from one job and not another and thus experience a loss in earning capacity on that one job so as to entitle him to total disability benefits.  The Hearing Officer who authored the Behornar case, Christopher Baum, acknowledged that there was no deception in the fact pattern -- the claimant held his second job before and at the time of the work accident at Standard.  Mr. Baum also noted that the employer knew that claimant was working his second job as of July 2008 and in fact had surveillance video of him performing work activity.  A Petition for Review could have been filed at that time based on the claimant's physical work activity and for whatever reason, the employer did not file its Petition for Review until March 2009.

So what does it all really mean?  In the opinion of this humble practitioner, the bottom line is:

#1  That you do not combine wages from two unrelated jobs to arrive at the claimant's average weekly wage and disability benefit rate (and that's not my opinion, that's black letter law)

#2 Should the claimant return to work at the unrelated job and earn wages, the employer is not entitled to a credit with respect to its payment of TTD benefits

#3  The claimant's working at the unrelated job does not prima facie negate his entitlement to disability benefits from the job on which he was injured but his ability to engage in some level of gainful employment may serve as evidence of work capability on the job of injury to support the filing of a Termination Petition

Delaware Detour & Frolic thanks Mike Galbraith for bringing this decision to our attention! 

A workers' comp law blog by Cassandra Roberts