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Reifsnyder v. Workers' Compensation Appeal Board9/28/2005
hich no wages were earned only because of prior disabling work injuries. The employers argued that these periods should be included in a calculation of AWW under Section 309(d) as periods of zero wages, while the claimants argued, among other points, that the AWW could properly be computed under Section 309(d) only if the AWW for the no-wage periods were fixed by importing the AWW which had been already established for the claimants' prior disabling work injuries.
After reviewing Triangle Building Center and Hannaberry, the Colpetzer Court agreed with the claimants' construction of Section 309(d). We recognized that Section 309 does not explicitly address the proper method for calculating AWW where a previous work injury deflated the worker's otherwise typical wages. Relying upon the overall humanitarian purpose of the Act and the clear legislative intention that workers injured on the job be paid a fair benefit based upon an accurate calculation of their actual work history and earning capacity, we reasoned that:
It is not an accurate measure of economic reality to treat periods where no wages were earned solely because the worker was unfortunate enough to have suffered a previous work injury, as if the worker had no earning capacity for those periods. Such an approach would severely underestimate the reality of the worker's typical earnings, punish the worker for no reason approved in the legislation, and contradict the overriding legislative goal of accuracy in calculation. 870 A.2d at 886 (emphasis original). Accordingly, this Court rejected the employer's argument that the periods at issue should be computed as "zero wages;" instead, we held that the previously-established AWW was the proper measure, for purposes of a calculation under Section 309(d).
In the cases sub judice, as in Hannaberry and Colpetzer, the statute does not specifically address the work scenario presented; i.e., there is no explicit mention in the statute of whether and how, in the calculation of AWW, to account for periods when a worker was laid off in the previous year, much less how to account for such layoffs if they are a common occurrence in a long-term employment relationship. Nevertheless, we believe that the structure and plain language of the statute clearly indicate that Section 309(d), not subsection 309(d.2), controls the calculation and also provides an accurate measure of such a type of worker's economic reality and earning capacity. As previously stated, Section 309(d) and subsections (d.1) and (d.2) address work/employment relationships of differing lengths. Section 309(d) governs employees with the longest work/employment histories -- i.e., employees who have been employed for at least four consecutive periods of thirteen calendar weeks. Subsections (d.1) and (d.2) address progressively shorter employment relationships: (d.1) governs employees employed for at least one, but less than three consecutive periods of thirteen calendar weeks; while (d.2) addresses cases of recent hires, i.e., employees who worked less than a single complete period of thirteen calendar weeks at the time they suffered a work injury.
The structure of the statute strongly indicates that subsection (d.2) was not intended to apply to employees, such as Claimants here, with long-term employment relationships with their employer, who happen to have been subject to layoffs. Both (d) and (d.1) include look-back periods encompassing the preceding fifty-two weeks, in search of "completed" thirteen-week periods; in contrast, subsection (d.2) has no such long-term focus, and indeed, it provides for a prospective calculation of potential earnings. By its terms, (d.2) contemplates persons for whom there is little wor
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