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And Another Thing...
Whenever a worker is injured in Pennsylvania and the claim is accepted, the workers’ compensation carrier, on behalf of the Employer calculates the average weekly wage (AWW) and weekly compensation rate.  The weekly rate is for wage loss benefits.   

Wage loss benefits are typically approximately two-thirds of a workers’ average weekly wage, up to a weekly maximum.  There are several different ways to calculate the average weekly rate under the Act.  The minimum compensation rate is the lower of 90% of the workers’ average weekly wage or 50% of the statewide average weekly wage.  Typically, if an injured worker had been working for her/his employer for more than a year before the work injury, the AWW is calculated based on the average earnings of the injured worker for the highest three quarters in the year immediately before the injury.

Under the Pennsylvania Workers’ Compensation Act, any worker who has filed a petition for either total or partial disability benefits, or who is already receiving workers’ compensation benefits is required to report, in writing to the insurer any and all wage information from all employers or self-employment.  The worker is obligated to cooperate with the workers’ compensation carrier in any investigation of employment, self-employment, wages and physical condition.

What if that injured worker had been laid off by his employer at times during the year preceding the work injury at issue?

The Commonwealth Court of Pennsylvania recently addressed this very issue in the case of Lenzi v. Workers’ Compensation Appeal Board (Victor Paving), No. 741 C.D. 2011 (Pa. Cmwlth., October 13, 2011).  The sole issue presented to the Commonwealth Court by claimant was whether the Workers’ Compensation Appeal Board erred in affirming the Workers’ Compensation Judge’s calculation of Mr. Lenzi’s AWW, in that the AWW calculation should have included his unemployment benefits received during periods of layoff from his job with employer during the year preceding the work injury sustained on July 30, 2007.

Mr. Lenzi started working as a truck driver for Victor Paving in June 2006.  On July 30, 2007, he sustained a work-related injury when he slipped and fell from a ladder on his truck after dislodging a tarp.  The case was litigated and the respective parties each submitted their calculations for claimant’s AWW and resultant compensation rate.  Claimant included his unemployment compensation benefits he received during the year before his work injury.  Under Mr. Lenzi’s calculations, this produced an AWW of $345.19, with a weekly compensation rate of $310.67.  The employer’s calculations produced an AWW of $174.99, with a weekly compensation rate of $157.49. 

Claimant argued that he continued his employment relationship with his employer during the 52 week period preceding the work-related injury, and that by including his unemployment compensation benefits; this would give a more accurate measure of his actual earnings.  In support of his position, claimant cited a 2005 Pa. Supreme Court case of Reifsnyder v. Workers’ Compensation Appeal Board (Dana Corp.), 883 A.2d 537 (2005).  In that case, despite periods of layoff, the term of “employment” continued.  This particular case also held that for Mr. Reifsynder’s AWW calculation, he was considered to have zero earnings for the weeks he was laid off, and that unemployment benefits were expressly excluded from Section 309(d)’s AWW calculations for the Act’s purposes.

In the present case, the  Commonwealth Court referenced Triangle Building Center v. Workers’ Compensation Appeal Board (Linch), 560 Pa. 540, 548, 746 A.2d 1108, 1112 (2000), as well as Section 309 of the Workers’ Compensation Act, 77 P.S. section 582, which sets forth the methods of AWW calculations.  The Court also held that the Reifsnyder case controls this matter and thus Mr. Lenzi would not be able to include his unemployment benefits in the calculation of his AWW.  

In conclusion, the Lenzi case held that the injured worker gets credit for zero earnings for the weeks she/he was laid off.  This Decision is good for employers, in that claimant’s AWW will be lessened, thus reducing the amount of workers’ compensation benefits paid each week while the injured worker is on workers’ compensation.

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