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Reifsnyder v. Workers' Compensation Appeal Board9/28/2005
k history with the employer upon which to calculate the AWW. Viewing the interrelationship of these subsections, we deem it unlikely in the extreme that the General Assembly intended (d.2) to supplant (d) or (d.1) anytime a long-term employment relationship happens to involve periods with a "work" cessation. Instead, we conclude that subsection (d.2) was intended for instances that it plainly covers; i.e., those instances of work injuries to recently-hired employees for whom there was, by definition, no accurate measure of AWW other than taking the existing hourly wage and projecting forward on the basis of the hours of work expected under the employment agreement.
Claimants here had a long-term employment relationship by which their actual history of earnings and earning capacity could be measured fairly, and we think the statute clearly was designed to capture that entire relevant period, rather than projecting an AWW from their hourly wages. Although they were subject to periodic layoffs, these Claimants nevertheless maintained continuous employment relationships with Employer, indeed for periods of fifteen and nineteen years. Thus, even in those down times where layoffs occurred, Claimants retained significant rights/accoutrements of employment, such as plant seniority, healthcare and sick leave benefits, and employer contributions to their retirement accounts. In addition, Claimants all returned to work with Employer following their respective layoffs, evidencing an ongoing employment relationship despite the periods of inactivity. 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. The fact that Claimants were not "working" during the periods when they were laid off does not mean that their long-term "employment" relationship was severed. See Colpetzer, 870 A.2d at 886 n.9 ("The fact that the Claimants in these appeals were not 'working' during their periods of disability does not mean that they were no longer 'employed' by their employers.").
Claimants' argument premised on the fact that subsection (d.2) speaks of periods of "work," in contrast to the "in the employ of the employer" language found in (d) and (d.1), is unpersuasive. Employer responds to Claimants' argument by suggesting that recent hires subject to subsection (d.2) may still be in a probationary work period, and thus not be deemed in the technical "employ" of the employer; or they may be transient workers who fail to complete a thirteen-week period of employment with any one employer in a given year. Given the variety of circumstances attending such short-term or incipient employment relationships, Employer argues, it was sensible for the General Assembly to use the term "worked" rather than the "in the employ of" language which was used to describe relationships of a longer duration. Viewed in light of the overall structure of the Act, as described above, Employer's reading is persuasive. In any event, we fail to see how subsection (d.2) can be read as revealing a legislative intent to negate the very language just employed to cover the longer-term employment relationships clearly contemplated in (d) and (d.1). Moreover, since the legislative scheme generally looks to the year past as the most accurate measure of AWW, it would be illogical to "project" the number of hours an employee was "expected" to work as the basis for fixing his AWW in an instance where, as here, there is in fact an ongoing employment relationship, albeit one subject to periodic layoffs, for the year-long period preceding the work injury.
The other arguments posed by Claimants are equally unpersuasive. Claimants argue that incl
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