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Reifsnyder v. Workers' Compensation Appeal Board9/28/2005
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Alternatively, Claimants contend that the Commonwealth Court was correct in holding that subsection 309(d.2) applies here as a matter of statutory construction, because Claimants did not "work" a single full thirteen-week period in the year prior to their work injuries. Claimants note that Section 309(d) provides the AWW formula for employees who were "employed" for three or more 13-week periods and subsection 309(d.1) likewise applies to employees "employed" for more than one but less than three completed 13-week periods. Subsection 309(d.2), however, has a different focus: it applies to "employees" who have "worked" less than a complete 13-week period. Claimants maintain that the General Assembly must be presumed to have intended a different analysis when it used the distinct term "worked." Claimants' continuous employment relationship therefore cannot be deemed controlling on the question of the applicability of subsection 309(d.2); the fact that they "worked" less than a full 13 weeks in the quarter immediately preceding their work injuries and worked no other completed quarters, requires that their AWW should be calculated pursuant to subsection 309(d.2).
Claimants characterize subsection 309(d.2) as a "savings clause" intended to protect an injured hourly wage worker from the harsh consequences that could result from application of Section 309(d) and subsection (d.1) in instances like these. In this regard, Claimants necessarily dispute the notion that subsection 309(d.2) was intended to apply only to new employees, noting that the General Assembly could have expressed that intention more clearly by adopting limiting language like "new employees who work less than 13 weeks" or speaking in terms of the length of employment (as Section (d) and subsection (d.1) do). Instead, Claimants emphasize that the provision speaks only of "employees" who "work" less than "a complete period of thirteen weeks."
Claimants also argue that there is nothing in the structure of Section 309 to suggest that the General Assembly intended that hourly-wage workers subject to layoff should find a reduction in the calculation of their AWW, when otherwise identically situated salaried workers are not subject to the same reduction. Claimants note that Sections 309(a), (b), and (c), which govern injured workers paid on a yearly, monthly and weekly basis respectively, do not require that the worker actually worked all of the weeks in some look-back period in order to have his AWW fixed according to his salary. In other words, the assertion is that there is no provision in those Sections that would allow for a reduction in AWW in instances where the worker was subject to layoff, furlough or other break in pay. Since Section 309 does not penalize salaried workers for layoffs, and does not specifically address layoffs, furloughs, or other periodic work cessations, Claimants argue that it should not be construed as reflecting an intention that hourly-wage workers should have their AWW calculation "deflated," merely because they had been laid-off in the previous year.
Finally, with respect to their continuous employment status, Claimants note that this status did not prevent Employer from laying them off during the look-back period, thus creating periods of no-work and no-pay "employment." Claimants corroborate Employer's claim that they received unemployment benefits during these periods, but argue that, by definition, those unemployment benefits arose precisely because they were not then "employed." Claimants argue that to include these periods of nowork/no-pay "employment" as if they were periods of gainful employment artificially deflates their true earning capacity. In a situation such as this, Claiman
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