Blaschock v. Workmen's Compensation Appeal Board

SMITH, Judge. Before this Court is the petition for review filed by John Blaschock (Claimant) from a decision of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s calculation of Claimant’s average weekly wage under Section 309(e) of The Pennsylvania Workmen’s Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 582(e). The sole issue presented is whether the referee incorrectly calculated the average weekly wage of Claimant contrary to provisions of Section 309 of the Act. The Board’s order is vacated, and this matter is remanded. Claimant was employed as a laborer for Yalena Construction Company (Employer) for approximately two years prior to sustaining a back injury during the course of his employment on May 26, 1986. Claimant installed gas lines which required him to dig ditches and install pipes outdoors underground. Since this work cannot be performed during the fall and winter months when the ground freezes, making the installation of pipes impractical or impossible, Claimant’s employment was considered seasonal.1 Board Decision, p. 2. Benefits were awarded to Claimant based upon the formula set forth in paragraph one of Section 309(e) of the Act which provides that: In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the aver [201] age weekly wage shall be taken to be one-fiftieth of the total wages which the employe has earned from all occupations during the twelve calendar months immediately preceding the injury, unless it be shown that during such year, by reason of exceptional causes, such method of computation does not ascertain fairly the earnings of the employe, in which case the period for calculation shall be extended so far as to give a basis for the fair ascertainment of his average weekly earnings. The referee calculated Claimant’s average weekly wage by totalling the income earned while employed by Employer during the preceding twelve months and dividing the sum by fifty arriving at an average weekly wage of $138.65 and a compensation rate of $124.24 per week. The Board upheld the referee’s decision as supported by the evidence.2 On appeal to the Board, Claimant contended that the referee erred in his calculation by failing to employ paragraph four of Section 309(e) of the Act or, in the alternative, that the referee should have applied Section 309(f) of the Act when determining the average weekly wage. The Board rejected Claimant’s arguments concluding that he failed to meet the statutory requirements of these provisions and, therefore, the referee correctly concluded that paragraph one of Section 309(e) provided the appropriate formula for calculating Claimant’s average weekly wage. Paragraph four of Section 309(e) states: If under clauses (a), (b), (c), (d) and (e) of this section, the amount determined is less than if computed as follows, his [sic] computation shall apply, viz.: Divide the total wages earned by the employe during the last two completed calendar quarters with the same employer by the number of days he worked for such employer during such period multiplied by five. [202] The formula contained in paragraph four, Claimant contends, would fix his average weekly wage at $427.94 ($6932.62 divided by 81, and multiplied by 5.). In the alternative, Claimant contends that Section 309(f) is applicable which states: In no case shall an employe’s average weekly wage be less then one-thirteenth of his highest calendar quarter wage amount in the first four of the last five completed calendar quarters immediately preceding the date of his injury, and compensation payments may be commenced on this basis unless other information obtained from the employe or employer establishes a higher weekly wage under this section. Under this provision, Claimant’s average weekly wage would be fixed at $397.59 ($5,168.62 divided by 13). See Claimant’s Brief, pp. 7, 9. Initially, Claimant argues that the Board incorrectly assumed that paragraph four of Section 309(e) was inapplicable since Claimant did not work and complete the last two quarters immediately preceding the injury to invoke this alternate formula. Claimant asserts that no such requirement is established by the wording of paragraph four and that this provision merely directs attention to the “last two completed calendar quarters with the same employer” without any indication as to the time during which the last two calendar quarters must fall. Employer disagrees with Claimant’s interpretation of paragraph four of Section 309(e), and while recognizing that the terms of this statute are not free from ambiguity, asserts that if paragraph four of Section 309(e) were applied, paragraph one, which specifically provides the formula for exclusively seasonal workers, would be rendered useless and mere surplusage. Employer further argues that to utilize the formula in paragraph four of Section 309(e) would provide for an average weekly wage to Claimant as though he were employed as a regular employee and earned his seasonal salary year round. Moreover, the application of this formula would entitle Claimant to yearly [203] benefits calculated to be more than twice the total salary earned by Claimant for the year, an unreasonable result not intended by the Legislature. Claimant cites Follett v. Workmen’s Compensation Appeal Board (Massachusetts Mutual Life Insurance Co.), 122 Pa.Commonwealth Ct. 58, 551 A.2d 616 (1988), appeal denied, 522 Pa. 606, 562 A.2d 828 (1989), to support his contention that Section 309(f) should be applied in the alternative. This Court held in Follett that Section 309(f) does not require that a claimant must have worked for an employer for any specified period of time before that formula can be utilized but merely defines the period within which wages must have been earned. Therefore, according to Claimant, where a claimant presents proof that wages were earned in any four of the last five completed quarters immediately preceding the date of injury, such wages must be considered in computing the average weekly wage. In Follett, this Court stated: [F]or wages to be considered in calculating an employee’s average weekly wage under Section 309(f), they must have been earned in the first four of the last five periods of three months beginning and ending on January 1 and March 31, April 1 and June 30, July 1 and September 30 or October 1 and December 31, respectively, that were completed immediately prior to the date of the employee’s injury. Follett, 122 Pa.Commonwealth Ct. at 66, 551 A.2d at 620. The clear language of Section 309(f) and Follett define the earnings period for calculating the average weekly wage as the first four of the last five quarters completed immediately prior to the date of injury. Although Claimant’s position may ultimately have merit, the record fails to contain any evidence of Claimant’s fifth completed quarter immediately preceding the date of his injury. It is therefore necessary to remand this matter for additional hearing on this issue and for the referee to determine, upon receipt of any additional evidence, whether Section 309(f) does in fact govern the calculation of Claimant’s average weekly [204] wage as opposed to other formulas contained in Section 309(e) of the Act. The Board’s order is therefore vacated and this matter is remanded for further hearing. ORDER AND NOW, this 15th day of November, 1990, the order of the Workmen’s Compensation Appeal Board is vacated, and this matter is remanded for further hearing consistent with this opinion. Jurisdiction relinquished. Footnotes [1] Seasonal occupation under Section 309 was defined by this Court in American Mutual Insurance Co. v. Workmen's Compensation Appeal Board (Davenport), 108 Pa.Commonwealth Ct. 345, 530 A.2d 121 (1987), citing language from Froehly v. Harton, 291 Pa. 157, 163, 139 A. 727, 730 (1927), which held that: "[sjeasonal occupations logically are those vocations which cannot, from their very nature, be continuous or carried on throughout the year, but only during fixed portions of it." [2] It could be contended however that even if Claimant’s occupation or vocation were seasonal, the language of the last paragraph of Section 309(e) is applicable to the first paragraph of subsection (e), since the last paragraph is specifically made applicable by the Legislature to all of the paragraphs of subsection (e).