Reifsnyder v. Workers' Compensation Appeal Board
Reifsnyder v. Workers' Compensation Appeal Board
Concurring Opinion
CONCURRING OPINION
I join the thorough and well-reasoned majority opinion reversing the decision of the Commonwealth Court and holding that Section 309(d) controls the computation of AWW in this case. I write separately only to distance myself respectfully from the majority’s conclusion that unemployment compensation benefits should not be included in the computation of an employee’s AWW under Section 309(d) where an employee’s relationship with an employer involves periodic layoffs. Maj. Op. at 358-60, 883 A.2d at 548. Notwithstanding that the parties could have directly raised, briefed and argued this issue explicitly before this Court, they have not. Therefore, I believe it would be more prudent to delay consideration of this difficult issue until a party raises it directly and the
Opinion of the Court
In these three consolidated appeals, this Court is faced with the following question concerning the 1996 amendments to Section 309(d) of the Workers’ Compensation Act (the “Act”), see 77 P.S. § 582(d): what constitutes the proper calculation of a claimant’s average weekly wage (“AWW”) for purposes of computing a workers’ compensation benefit in the situation where the injured employee was subject to work-related layoffs for business/economic reasons in the relevant look-back period? This Court has recently examined the proper calculation of a claimant’s AWW under amended Section 309(d) in two cases involving materially distinct circumstances, but which are instructive in resolving the issue here. In Hannaberry HVAC v. Workers’ Compensation Appeal Bd. (Snyder, Jr.), 575 Pa.66, 834 A.2d 524 (2003), we determined that the overall purpose of the 1996 amendments was to ensure an accurate calculation of an injured worker’s average wages/earning capacity; and we held that the diminished wages the claimant in that case had earned as a part-time student worker were not to be included in calculating his AWW, where his disabling work injury occurred after he had graduated from high school and had been working for three months as a full-time employee. In the second matter, Colpetzer v. Workers’ Compensation Appeal Bd. (Standard Steel), 870 A.2d 875 (Pa. 2005), the injured claimants had received no wages during relevant periods in the prior year only because they were on disability as a result of prior compensated work injuries; this Court held that an accurate calculation of AWW in that instance required that the periods of prior disability not be treated as if the claimants had no earning capacity at that time, but instead, the AWW already established for the prior work injuries is the measure of the AWW for the relevant prior periods of disability.
In each of the matters sub judice, the Claimant/appellee was a long-term employee of appellant Dana Corporation: Claimants Jeffrey Reifsnyder and Richard Hoffa were em
Section 309, as amended in 1996, sets forth a scheme for computing “the average weekly wages of the employe.” 77 P.S. § 582. Sections 309(a), (b) and (c) provide the method of calculating 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*346 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.l) 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. § 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).
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, 568 Pa. 706, 796 A.2d 986 (2002), the panel first found that, in determining whether Section 309(d) or subsection 309(d.2) applied, the controlling issue was whether Claimants actually “worked” during the pertinent periods and not whether claimants maintained an employment relationship with Employer. The panel then reviewed Claimants’ respective work histories. Each Claimant had been laid off for at least some portion of each of the four thirteen-week periods preceding injury; thus, none had actually “worked” an entire thirteen-week quarter. For example, Claimant Reifsnyder, who was injured on November 23, 1998, had been laid off numerous times including, but not limited to: from 11-3-97 to 1-25-98, during the 1st thirteen-week period; from 2-25-98 to 3-2-98, during the 2nd period; from 7-20-98 to 8-9-98, during the 3rd period; and from 8-17-98 to 9-20-98, during the 4th period.
Our standard of review in workers’ compensation appeals is settled: We will affirm the adjudication below unless an error of law was committed, constitutional rights were violated, a practice or procedure of a Commonwealth agency was not followed or any necessary finding of fact is not supported by substantial evidence of record. 2 Pa.C.S. § 704; Colpetzer, 870 A.2d at 882; Hannaberry, 834 A.2d at 527. Here, the pertinent facts were stipulated to, and no party has alleged a constitutional violation or that an agency practice or procedure was not followed. The sole issue involves the proper manner of calculating AWW under the Act. Since this is a question of law, this Court’s review is plenary. Colpetzer; Hannaberry. In conducting that review, we are cognizant of the fact that, “the Pennsylvania Worker’s Compensation Act is remedial in nature and intended to benefit the worker, and, therefore, the Act must be liberally construed to effectuate its humanitarian objectives.” Peterson v. Workmen’s Compensation Appeal Bd. (PRN Nursing Agency), 528 Pa.279, 597 A.2d 1116, 1120 (1991) (collecting cases). Accordingly, “ ‘[borderline interpretations of [the] Act are to be construed in [the] injured party’s favor.’ ” Hannaberry, 834 A.2d at 528, quoting Harper & Collins v. Workmen’s Compensation Appeal Bd. (Brown), 543 Pa. 484, 672 A.2d 1319, 1321 (1996) (citation omitted).
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
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 [as] 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[s]” 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
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.
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.l) 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 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.
Although the specific issue presented in this case is one of first impression, this Court does not write upon an entirely blank slate. Three decisions from this Court—Triangle Building Center, supra, Hannaberry, supra, and Colpetzer, supra—are particularly helpful to our consideration. Triangle Building Center involved a concurrent employment situation governed by the last clause of Section 309(e) of the Act, which provides that where an employee is working under concurrent contracts with multiple employers, his wages from all employers “shall be considered as earned from the employer liable for compensation.” 77 P.S. 582(e). The claimant in Triangle Building Center had been laid off by one employer for approximately two months at the time he was injured in the other employer’s employ. The question for this Court was whether the temporary layoff from the concurrent employment “precluded assessment of [the claimant’s] concurrent earnings experience within the average weekly wage calculation.” 746
In so holding, we noted that “[t]he Act seeks to compensate claimants for the ongoing loss in earning capacity resulting from their injuries; therefore, some reasonable assessment must be made of claimants’ pre-injury ability to generate further earnings.” The Court explained that the mechanics of the legislative scheme revealed an intention that the “baseline figure from which benefits are calculated should reasonably reflect the economic reality of a claimant’s recent pre-injury earning experience, with some benefit of the doubt to be afforded to the claimant in the assessment.” 746 A.2d at 1112. This Court then concluded that the General Assembly directed inclusion of concurrent wages in the benefits computation “to create a reasonable picture of a claimant’s pre-injury earning experience for use as a projection of potential future wages and, correspondingly, earnings loss.” Id. at 1113.
In Hannaberry, 575 Pa. 66, 834 A.2d 524, this Court similarly emphasized that Section 309 “was obviously intended to ensure an accurate calculation of wages in the myriad employment scenarios arising in today’s workplaces.” Colpetzer, 870 A.2d at 884 (characterizing Hannaberry); Hannaberry, 834 A.2d at 532-33 (structure and language of Section 309 make apparent that “a ‘fair ascertainment’ of the employee’s wages is the legislative intendment”). In Hannaberry, the question was whether a seriously and permanently injured full-time teenage worker, whose full-time employment was immediately preceded by part-time after-school employment, should have those periods of part-time employment included in the calculation of his AWW. After recognizing that Section 309 did not specifically address this precise work scenario, this Court reasoned that inclusion of the quarters in which the claimant had worked part-time after school would result in an underestimation of his actual wages and earning capacity. According
This Court’s most recent decision, Colpetzer, involved claimants whose work injuries occurred within a year of previous work injuries for which they had received workers’ compensation benefits. The issue was how properly to calculate the AWW in instances where there were relevant weeks in the look-back period in which 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 con*356 tradict 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; ie., 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.l) and (d.2) address work/employment relationships of differing lengths. Section 309(d) governs employees with the longest work/employment histories—ie., employees who have been employed for at least four consecutive periods of thirteen calendar weeks. Subsections (d.l) and (d.2) address progressively shorter employment relationships: (d.l) 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, ie., 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.l) 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
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.”).
The other arguments posed by Claimants are equally unpersuasive. Claimants argue that including periods of layoff pursuant to Section 309(d) leads to a situation where hourly-wage workers are treated unequally compared to salaried workers, whose wages are not offset if they were subject to layoffs. But this fact this does not mean that Section 309(d) is an inaccurate measure of the injured hourly worker’s earning capacity or AWW; to the extent there is an inaccuracy, it would consist of an over-calculation of the AWW for salaried workers subject to layoff. Though this perceived inequity might be a basis upon which to seek legislative relief, it is no basis upon which this Court may refuse to apply the statute as
Similarly unpersuasive in light of the plain statutory construct is Claimants’ argument that the layoffs at issue here supposedly were atypical or aberrational. Presumably, by forwarding this argument, Claimants mean to suggest that they were subject to shorter layoffs in years past. The statute, however, fixes a look-back period of a certain length as the best measure of earning capacity. There can be a myriad of reasons why a worker’s pay varies from year to year. It was the prerogative of the General Assembly to fix the relevant look-back period, and it has determined that the past year is the best measure for fixing AWW in the case of long-term employees.
Finally, we note that our holding is consistent with this Court’s recent decision in Colpetzer, which was announced after this matter was briefed and argued. We realize that the parties are in agreement that Claimants in the case sub judice received unemployment compensation for periods of work layoff. The fact that no wages are deemed attributable to these periods of layoff, notwithstanding receipt of unemployment benefits, is consistent with Colpetzer because a person who is laid-off from work is not in the same situation vis a vis the Workers’ Compensation Act as a person who is rendered unable to work, or whose work options are restricted, because of a work injury. The laid-off worker can seek to supplement his income with another job; the disabled worker either cannot do so at all or, at a minimum, is impaired in his ability to obtain comparable employment. The Act concerns itself with compensable work injuries and their effect upon earning capacity; a decline in a worker’s earnings which results from business or economic forces is not the same as a decline in that worker’s earnings due to a job-related impairment. The Workers’ Compensation system operates to insure a worker
For the reasons specified above, we hold that Section 309(d) controls the computation of AWW in this case. Our conclusion is consistent with our recognition in Colpetzer, Hannaberry, and Triangle Building Center that the purpose of the Section is to accurately capture economic reality.
Reversed.
. Section 309(e) addresses AWW calculations for seasonal employees, and thus is not directly relevant here. (The last paragraph of Section 309(e) also addresses concurrent employment scenarios.)
. In the 52 weeks preceding Claimant Remp's October 14, 1998 injury, he was laid off: from 12-8-97 to 12-9-97, which is in the 1st period;
. Employer cites cases including Triangle Building Center v. Workers' Compensation Appeal Bd. (Linch), 560 Pa.540, 746 A.2d 1108 (2000); Colpetzer v. Workers' Compensation Appeal Bd. (Standard Steel), 802 A.2d 1233 (Pa.Cmwlth. 2002), affirmed, 870 A.2d 875 (Pa. 2005); Port Auth. of Allegheny County v. Workers' Compensation Appeal Bd. (Cooley), 773 A.2d 224 (Pa.Cmwlth. 2001); and Norton v. Workers’ Compensation Appeal Bd. (Norton), 764 A.2d 704 (Pa.Cmwlth. 2000).
. Claimants have filed a single, joint brief as appellees.
. We note that Employer and Claimants both seem to assume that, in a scenario involving a long-time employee subject to periodic layoffs, the AWW always will be greater if calculated under subsection (d.2) rather than under (d). The validity of this assumption is not self-evident. In theory, if a long-time employee were laid off for a consistent and predictable number of days each year (or each quarter), the computa
. Although the parties agree that unemployment benefits were paid, we note that this fact is not contained in the parties' stipulations below. Strictly for purposes of decision, this Court will accept the parties’ mutual assertion.
. Ultimately, the Triangle Building Center Court held that the claimant had maintained a sufficiently intact, ongoing employment relationship with the concurrent employer, and thus, his past earnings experience remained a valid predictor of future earnings loss. Id.
. We also note that our conclusion that Section 309(d) controls is consistent with the humanitarian objective of the Act. In this instance, application of Section 309(d) provides an accurate measure of these workers’ recent earnings history and earning capacity.
Dissenting Opinion
DISSENTING OPINION
I would affirm based on the reasoning applied by the Commonwealth Court, which I believe implemented a plain-meaning interpretation of the relevant statutory provisions. See Reifsnyder v. WCAB (Dana Corp.), 826 A.2d 16 (Pa.Cmwlth. 2003); accord Bethlehem Structural Products v. WCAB (Vernon), 789 A.2d 767 (Pa.Cmwlth. 2001). Although the majority also lays claim to the application of a plain-meaning approach, I am not persuaded that this characterization is supported. In this regard, while on the one hand the majority gives effect to the substantial difference in connotation between the terms “work” and “employment” in some aspects of its analysis, see Majority Opinion, op. at 357-58, 883 A.2d at 547 (“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.”), it nevertheless proceeds to equate these two terms in a pivotal passage construing Section 309(d.2). See id. at 357-58, 883 A.2d at 547 (equating “employees who worked less than a single complete period of thirteen calendar weeks at the time they suffered a work injury” exclusively with “recent hires” for purposes of Section 309(d.2)).
I respectfully dissent, as I believe that the Commonwealth Court’s more consistent treatment of the distinct statutory terms involved is the better one. See Reifsnyder, 826 A.2d at 20 (“[T]he issue is whether Claimants worked a complete 13 week period in the 52 weeks preceding their injuries.” (empha
. The effort to implement a comprehensive workers' compensation system entailing standardized benefit formulas implemented in the course of an underlying trade-off between loss spreading and insulation of employers from tort liability inherent in the workers’ compensation scheme, see generally 2 A. Larson, The Law of Workmen’s Compensation, § 60.31(c), at 10-751-52 (1993), is bound to yield results that, viewed from the individual perspective of claimants and employers in discrete cases, may appear inequitable.
Reference
- Full Case Name
- Jeffrey REIFSNYDER, Dennis Remp and Richard Hoffa v. WORKERS’ COMPENSATION APPEAL BOARD (DANA CORPORATION), Appeal Of: Dana Corporation
- Cited By
- 35 cases
- Status
- Published