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Reifsnyder v. Workers' Compensation Appeal Board9/28/2005
alculating AWW when the employee's wages are fixed by the week, month or year, respectively. None of those Sections is at issue here. Section 309(d) then describes various methods of calculating AWW where, as here, wages are fixed otherwise:
(d) If at the time of the injury the wages are fixed by any manner not enumerated in clause (a), (b) or (c), the average weekly wage shall be calculated by dividing by thirteen the total wages earned in the employ of the employer in each of the highest three of the last four consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately preceding the injury and by averaging the total amounts earned during these three periods.
(d.1) If the employe has not been employed by the employer for at least three consecutive periods of thirteen calendar weeks in the fifty-two weeks immediately preceding the injury, the average weekly wage shall be calculated by dividing by thirteen the total wages earned in the employ of the employer for any completed period of thirteen calendar weeks immediately preceding the injury and by averaging the total amounts earned during such periods.
(d.2) If the employe has worked less than a complete period of thirteen calendar weeks and does not have fixed weekly wages, the average weekly wage shall be the hourly wage rate multiplied by the number of hours the employe was expected to work per week under the terms of employment.
77 P.S. ยง 582.
It is undisputed that each Claimant was entitled to workers' compensation benefits for injuries sustained while working for employer; the issue is the proper calculation of those benefits. The three cases proceeded before the WCJ upon stipulated facts. Due to recurring periodic layoffs in the previous year, none of the Claimants had continuous wage earnings for a complete thirteen-week period in the year preceding injury. In accordance with the terms of the collective bargaining agreement, Claimants maintained their plant seniority and Employer continued to provide them with healthcare benefits and contributions to their retirement accounts, notwithstanding the periodic layoffs. Because Employer considered each Claimant to be "in its employ" for four consecutive periods of 13 calendar weeks in the 52 weeks immediately preceding injury, Employer calculated the AWW pursuant to Section 309(d).
Claimants filed petitions for review, arguing that the AWW should have been calculated under the prospective, hourly multiplier set forth in subsection 309(d.2). On September 12, 2000, the WCJ issued separate but consistent decisions and orders, noting that, although Claimants did not earn wages for any single consecutive period of 13 calendar weeks in the year preceding their injuries because of the work layoffs, they nevertheless continued in an employment relationship with Employer the whole time, including the periods during which they were laid off. Accordingly, in the WCJ's view, Employer properly calculated Claimants' AWW pursuant to Section 309(d). Claimants appealed to the WCAB, which affirmed the WCJ in each case, employing similar reasoning in separate but materially identical opinions.
Upon further appeal by Claimants, a panel of the Commonwealth Court reversed and remanded in a published opinion. Reifsnyder v. Workers' Compensation Appeal Bd. (Dana Corp.), 826 A.2d 16 (Pa. Cmwlth. 2003). Citing that court's earlier decision in Bethlehem Structural Products v. Workers' Compensation Appeal Bd. (Vernon), 789 A.2d 767 (Pa. Cmwlth. 2001), appeal denied, 796 A.2d 986 (Pa. 2002), the panel first found that, in determining whether Section 309(d) or subsection 309(d.2) applied, the controlling issue was whether Claimants a
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