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Reifsnyder v. Workers' Compensation Appeal Board9/28/2005
PINION
MR. JUSTICE BAER
I join the thorough and well-reasoned majority opinion reversing the decision of the Commonwealth Court and holding that Section 309(d) controls the computation of AWW in this case. I write separately only to distance myself respectfully from the majority's conclusion that unemployment compensation benefits should not be included in the computation of an employee's AWW under Section 309(d) where an employee's relationship with an employer involves periodic layoffs. Maj. Op. at 18-19. Notwithstanding that the parties could have directly raised, briefed and argued this issue explicitly before this Court, they have not. Therefore, I believe it would be more prudent to delay consideration of this difficult issue until a party raises it directly and the Court has the benefit of focused advocacy concerning whether inclusion of the unemployment compensation benefits in the AWW would provide a more "accurate measure of a worker's earnings history and earning capacity." Maj. Op. at 18-19. In all other respects, I join the erudite majority opinion.
Mr. Chief Justice Cappy, Mr. Justice Nigro and Madame Justice Newman join this concurring opinion.
DISSENTING OPINION
MR. JUSTICE SAYLOR
I would affirm based on the reasoning applied by the Commonwealth Court, which I believe implemented a plain-meaning interpretation of the relevant statutory provisions. See Reifsnyder v. WCAB (Dana Corp.), 826 A.2d 16 (Pa. Cmwlth. 2003); accord Bethlehem Structural Products v. WCAB (Vernon), 789 A.2d 767 (Pa. Cmwlth. 2001). Although the majority also lays claim to the application of a plain-meaning approach, I am not persuaded that this characterization is supported. In this regard, while on the one hand the majority gives effect to the substantial difference in connotation between the terms "work" and "employment" in some aspects of its analysis, see Majority Opinion, slip op. at 16 ("Notably, the general rule set forth in Section 309(d) does not speak in terms of the continuity of 'work,' but rather, the continuity of the 'employment' relationship."), it nevertheless proceeds to equate these two terms in a pivotal passage construing Section 309(d.2). See id. at 15 (equating "employees who worked less than a single complete period of thirteen calendar weeks at the time they suffered a work injury" exclusively with "recent hires" for purposes of Section 309(d.2)).
I respectfully dissent, as I believe that the Commonwealth Court's more consistent treatment of the distinct statutory terms involved is the better one. See Reifsnyder, 826 A.2d at 20 (" he issue is whether Claimants worked a complete 13 week period in the 52 weeks preceding their injuries." (emphasis in original)). Given the specific terms selected by the Legislature, and particularly since the relevant policy considerations and equities are substantially mixed, it seems to me to be preferable to leave the task of any necessary adjustments to the statutory compensation scheme to the Legislature, within constitutional limitations.
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