Reifsnyder v. WCAB (Dana Corp.)

• Decision Date: 28 September 2005
• Citation: 584 Pa. 341,883 A.2d 537
• Parties: Jeffrey REIFSNYDER, Dennis Remp and Richard Hoffa v. WORKERS' COMPENSATION APPEAL BOARD (DANA CORPORATION), Appeal of: Dana Corporation.
• Court: Pennsylvania Supreme Court

883 A.2d 537

584 Pa. 341

Jeffrey REIFSNYDER, Dennis Remp and Richard Hoffa v. WORKERS' COMPENSATION APPEAL BOARD (DANA CORPORATION),

Appeal of: Dana Corporation.

Supreme Court of Pennsylvania.

Argued October 18, 2004.

Decided September 28, 2005.

David S. Reno, Carol A. Crisci, Fort Washington, for Dana Corp.

Thomas Joseph O'Brien, Philadelphia, for Jeffrey Reifsnyder.

Before: CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and BAER, JJ.

OPINION

Justice CASTILLE.

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 employed for approximately nineteen years, and claimant Dennis Remp for approximately fifteen years. Each Claimant maintained a continuing employment relationship with Employer, pursuant to the terms of a collective bargaining agreement, but were subject to periodic layoffs during downturns in Employer's production cycle, including layoffs in each of the four quarters immediately preceding the work injury at issue. In each case, both the Workers' Compensation Judge ("WCJ") and the Workers' Compensation Appeal Board ("WCAB") construed the Act as requiring that the periods of time when Claimants earned no wages due to layoffs be included in the calculation of their AWW pursuant to Section 309(d), which provides for an averaging of the weekly wages earned in the highest three of four immediately preceding work quarters. Claimants appealed to the Commonwealth Court, which consolidated the appeals and then reversed, concluding that the layoffs resulted in Claimants working less than a single completed period of thirteen weeks in the previous year and that the AWW was to be calculated pursuant to subsection 309(d.2), which authorizes a prospective calculation of AWW measured by multiplying the worker's hourly wage rate by his expected weekly work hours. For the reasons that follow, we agree with the WCJ and the WCAB that Section 309(d) controls, and that the periods of time during which Claimants received no wages because of periodic layoffs must be included in the computation of AWW. Accordingly, we reverse the Commonwealth Court.

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 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.1) 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. § 582.¹

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).

Claimants filed petitions for review, arguing that the AWW should have been calculated under the prospective, hourly multiplier set forth in subsection 309(d.2). On September 12, 2000, the WCJ issued separate but consistent decisions and orders, noting that, although Claimants did not earn wages for any single consecutive period of 13 calendar weeks in the year preceding their injuries because of the work layoffs, they nevertheless continued in an employment relationship with Employer the whole time, including the periods during which they were laid off. Accordingly, in the WCJ's view, Employer properly calculated Claimants' AWW pursuant to Section 309(d). Claimants appealed to the WCAB, which affirmed the WCJ in each case, employing similar reasoning in separate but materially identical opinions.

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.² Because none of the Claimants actually worked any complete 13-week period due to work layoffs, the panel held that benefits should be calculated pursuant to subsection 309(d.2). The panel reiterated its belief that "the issue was not whether Claimants were employed by Employer in the 52 weeks preceding their injuries. Rather, the issue is whether Claimants worked a complete 13 week period in the 52 weeks preceding their injuries." 826 A.2d at 21. This Court granted further review to consider the proper calculation of AWW in this not-uncommon work scenario.

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...