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Reifsnyder v. Workers' Compensation Appeal Board9/28/2005
actual earnings during the relevant periods within his recent, continuous employment relationship, is the only proper and accurate measure of AWW. Employer also cites numerous cases in which this Court and the Commonwealth Court alike have recognized that being "employed" does not necessarily refer only to the days the employee works, but encompasses the entire period of an ongoing employment relationship. Employer argues that these cases recognize that subsections 309(d.1) and (d.2) are only applicable where there is no long-term employment relationship, which is simply not the case here.
Employer also argues that applying Section 309(d) in this particular work scenario furthers the recognized purpose of the 1996 amendments, which was to ensure an accurate and realistic measure of an injured worker's earning capacity.
Employer asserts that applying Section 309(d), and thereby accounting for the periods of layoff which are typical in these longstanding employment relationships, is the most accurate measure of the recent economic reality for these particular workers:
Pursuant to the collective bargaining agreement here, the reality of each of these claimant's earning experience is that during periods of employment, the employees would work substantial hours, including overtime, then there would be periods of lay-offs due to economic reasons. This is the economic reality for these claimants, who would collect unemployment benefits during the periods of layoff, as well employer-paid supplemental unemployment benefits (SUB), pursuant to the collective bargaining agreement. These long[-]term employees were accustomed to periods of boom when the plant was running at full production, with plentiful overtime hours available, followed by periods of bust, during which layoffs were the norm. Nonetheless, the employment relationship continued ..
Brief of Appellant, 15. Employer further notes that each Claimant here in fact returned to work after recovering from his injury, and each continued to experience occasional layoffs which, Employer argues, proves that accounting for such layoffs is the most accurate measure of earning capacity in this particular line of employment. In contrast, Employer notes, the Commonwealth Court panel's application of subsection 309(d.2) "artificially inflate " the typical earnings for these claimants.
Finally, Employer maintains that application of subsection 309(d.2) in the case of long-time employees who are periodically laid off for economic reasons would result in an arbitrary application of the Act to the detriment of both employees and their employers. Employer posits that different employees in materially identical situations could be treated differently, depending on the fortuity of how soon after a layoff an injury occurs. Employer argues that Section 309(d), which focuses on the length of the employment relationship and provides a fuller picture of the relationship, avoids such inconsistent application.
Claimants agree with Employer that the amendments to Section 309(d) were designed to ensure an AWW which is an accurate measure of future wage loss caused by a present work injury. Claimants argue, however, that the layoffs that they were subjected to in the year before their injuries were "atypical" and "aberrant," and any AWW computation which factored in these periods of no-wage layoff would inaccurately reflect their economic reality and leave them under-compensated. Claimants submit that they were earning their "customary" hourly wages at the time of their work injuries, and accordingly, their AWW should be based upon an extrapolation from those typical hourly wages, as provided by subsection 309(d.2).
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