By: Roger D. Horgan

This might be considered a trick question, but it is not. Most Pennsylvania workers know that they are protected by the Worker’s Compensation Act and expect to receive workers’ compensation benefits if injured on the job. However, a claim for workers’ compensation does not involve negligence.

This is part of the grand bargain underlying the Worker’s Compensation Act—the employee is entitled to receive benefits without proving fault, in exchange for limiting the employer’s liability to lost wages and medical care. The employer is not exposed to liability for pain, suffering, and inconvenience. This limited exposure also applies to injuries caused by coworkers. A worker cannot sue a coworker even if negligence was involved.

It is possible to bring lawsuits against parties other than the employer whose negligence caused an accident. For example, if the work injury was the result of a car accident with another person. This is a claim against someone other than the employer, and the employer’s workers’ compensation immunity is still honored.

Despite the broad limitations imposed by employer’s workers’ compensation immunity, there is one category of cases in which an employee may bring a lawsuit in negligence against the employer. This exception is known as the “dual capacity” doctrine. An employer normally shielded from liability by the exclusive remedy may become liable to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed upon him as an employer. Callendar v. Goodyear Tire and Rubber Company, 564 A.2d 180 (Pa. Super. 1989).

The dual capacity doctrine was successfully employed in the case of Tatrai v. Presbyterian University Hospital, 439 A.2d 1162 (Pa. 1982). A hospital employee became ill while at work. She was taken to the emergency room of the same hospital. While in the emergency room, she was injured as the result of the negligence of the hospital. The Pennsylvania Supreme Court reasoned that the employee was in the same position as any other member of the public receiving medical treatment because the emergency room was open to the general public. The Court held that the hospital owed the employee the same duty it owed the general members of the public who came to the hospital room for emergency care. The hospital was not immune under the Worker’s Compensation Act from suit for the injuries the employee sustained in its own emergency room.

Although the dual capacity doctrine was used successfully in the Tatrai case, this is the exception. In Neidert v. Charlie, 143 A.3d 384 (Pa. Super. 2016), the injured employee attempted to use the fact that the employer was also the landlord for the building in which he was injured to convince the Court that the employer had a dual capacity. The court declined to accept this argument. The employee was actually injured during the course and scope of his employment. Because it was impossible to distinguish where one role started and the other ended, the employee could not “sue” the employer.

There are certain circumstances in which a negligence case can be brought against an employer, but they are very limited. It is important to speak to an experienced attorney who can navigate these complex rules of liability.

By: Douglas A. Williams

If you are receiving workers’ compensation benefits, you’re likely bringing home less money than you were when you were working. Unfortunately, workers’ compensation is not designed to pay the exact same amount you were earning before your work-related injury. After an injury, the employer or the workers’ compensation insurance carrier calculates the “average weekly wage” or (AWW). This is the average amount that the injured worker was earning at the time of the injury. The injured workers’ compensation rate could be anywhere from 66% – 90% of that AWW depending on how much the worker was earning.

Many injured workers simply assume that the employer or the workers’ compensation insurance carrier has accurately calculated their AWW and compensation rate, but they often make mistakes.

The Workers’ Compensation Act provides for different methods of calculating the AWW based on the manner in which the injured worker’s pay was determined—hourly, salary, or other methods—and how long the injured worker was employed. If the employer or the carrier use the wrong method of calculation, the AWW and corresponding compensation rate may be too low.

Additionally, the employers and/or workers’ compensation insurance carriers are required to include other payments such as the following:

Money received in a profit sharing plan;

Accrued vacation and/or sick pay;

Per diem payments (i.e., payments made to workers who travel to provide money for food and/or lodging);

Bonuses;

Supplemental Unemployment Benefits (benefits that are payable under some Collective Bargaining Agreements when a worker receives unemployment), and;

Concurrent employment (money earned from a second job at which the injured worker was employed at the time of the injury).

Employers or insurance carriers often neglect to include benefits such as these in the calculation of the AWW. When this happens, the injured worker receives less than they should in weekly compensation benefits. If you believe that you’re receiving less than you should, call us and we will be happy to review your case. If appropriate, we will file the necessary petition to compel the employer or carrier to pay you the full amount of benefits you earned.