The employer is not entitled to a reduction in total disability compensation payments where following a compensable injury, the claimant resumes working at concurrent employment since the second job was not counted in establishing the average weekly wage.

The claimant injured his left shoulder on April 22, 2008, while working as a driver for the employer. The injury was accepted as compensable, and the claimant began receiving compensation for total disability at the rate of $503.73 per week based on an average weekly wage of $755.56. The claimant at the time of the injury had concurrent employment with the News Journal as a part-time deliverer. He told the claim adjuster on his case about the second job shortly after his injury. By July 2009, the claimant resumed working at the job with the News Journal, but he never again worked for the employer. The employer filed a petition for reformation of the Agreement for total disability, alleging that the claimant was no longer totally disabled as of when he resumed working at the second job, and also seeking a credit for the overpayment of total disability compared to what should have been paid for partial disability. The Board denied the petition, finding no deception by the claimant and no legal basis to either reform the Agreement or award a credit for overpayment. Importantly, the settled law in Delaware (unlike some other states such as Pennsylvania) is that wages from concurrent employment cannot be considered in establishing the average weekly wage at the time of injury. The Board, based on this precedent, reasoned that it was only fair that since the wages from the second job were not counted in fixing the average weekly wage, they must likewise be ignored for purposes of later reducing those benefits. In essence, the Board referred to this as one of those uncommon situations where a claimant can be compensated for total disability while working, albeit with a different employer.

Case Law Alert - 3rd Qtr 2010