Blaschock v. Workmen's Compensation Appeal Board

625 A.2d 194, 155 Pa. Commw. 452, 1993 Pa. Commw. LEXIS 287
CourtCommonwealth Court of Pennsylvania
DecidedMay 5, 1993
DocketNo. 1324 C.D. 1992
StatusPublished
Cited by3 cases

This text of 625 A.2d 194 (Blaschock v. Workmen's Compensation Appeal Board) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blaschock v. Workmen's Compensation Appeal Board, 625 A.2d 194, 155 Pa. Commw. 452, 1993 Pa. Commw. LEXIS 287 (Pa. Ct. App. 1993).

Opinion

CRAIG, President Judge.

Claimant John Blaschock appeals an order of the Pennsylvania Workmen’s Compensation Appeal Board that affirmed a referee’s decision calculating the claimant’s weekly workmen’s compensation benefits.

The sole issue raised on appeal is whether the referee erred in calculating the claimant’s average weekly wage based upon the first paragraph of 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), which applies to seasonal [454]*454employees, rather than either the last paragraph of section 309(e), or section 309(f) of the Act, each of which can provide alternate higher average weekly wage computations.

FACTS

The claimant suffered a work-related injury to his back, while employed by Yalena Construction Company (employer). The claimant worked for the employer for two years before his injury. However, because the claimant’s job required that he dig ditches and install gas lines outdoors and underground, the claimant could not work during the fall and winter months, when the ground freezes. The referee found that the claimant’s occupation was seasonal1 and awarded workmen’s compensation benefits to the claimant under the first paragraph of section 309(e) of the Act.

The claimant appealed the referee’s decision to the board, contending that his average weekly wage should have been calculated under either the last paragraph of section 309(e) or under section 309(f). The board affirmed the referee’s decision and the claimant appealed to this court. This court vacated the board’s order and remanded the case to obtain further evidence in order to determine whether subsection (f) or (e) applied to the present case. Blaschock v. Workmen’s Compensation Appeal Board (Yalena Construction Company), 136 Pa.Commonwealth Ct. 199, 582 A.2d 722 (1990) (Blaschock I).

After taking new evidence, the referee determined that that evidence did not affect the application of the first paragraph of section 309(e), and once again calculated the claimants average weekly wage under that section. The claimant appealed to the board, which once again affirmed the referee’s decision. This appeal followed.

[455]*455Our scope of review of an administrative decision is limited to determining whether any constitutional rights have been violated, whether any error of law has been committed, or whether the necessary findings of fact are supported by substantial evidence. City of Williamsport v. Workmen’s Compensation Appeal Board (Schmuck), 55 Pa.Commonwealth Ct. 618, 423 A.2d 817 (1980).

The claimant argues that the referee erred in calculating the average weekly wage under the first paragraph of section 309(e) of the Act, which provides as follows:

In occupations which are exclusively seasonal and therefore cannot be carried on throughout the year, the average 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, using the above formula, found that the claimant had earned $6,932.62 while working for the employer twelve months before the injury. The referee divided that figure by fifty and found an average weekly wage of $138.65, and a compensation rate of $124.24 per week.

The claimant contends that the average weekly wage should have been calculated under the last paragraph of section 309(e), of the Act, or alternatively, under section 309(f) of the Act.

Section 309(e), last paragraph, 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 [456]*456he worked for such employer during such period multiplied by five.

(Emphasis added).

Section 309(f) states:

In no case shall an employe’s average weekly wage be less than 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.

A calendar quarter is one of the four periods of three months each of a calendar year. A calendar year is the year beginning on January 1 and ending on December 31. See Follett v. Workmen’s Compensation Appeal Board (Massachusetts Mutual Life Insurance Company), 122 Pa.Commonwealth Ct. 58, 551 A.2d 616 (1988) In considering what constitutes a calendar quarter, in order to calculate average weekly wage, the wages 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, immediately before the date of the claimant’s injury. Id.

The claimant contends that, under the last paragraph of section 309(e), his average weekly wage would be $427.94, computed as follows: the total of wages from the last two completed calendar quarters, $6932.62, divided by the number of days he worked for the employer, 81, multiplied by five. Under section 309(f), the claimant contends that his average weekly wage would be $395.11: the total of the claimant’s highest calendar quarter wage, $5,136.55, divided by thirteen.

The referee’s calculation of the average weekly wage under the first paragraph of section 309(e) would result in an average weekly wage lower than a calculation under either the last paragraph of section 309(e), or section 309(f). The claimant [457]*457argues that both of the latter sections indicate a legislative preference for the use of a formula that will provide a claimant with the highest possible weekly benefit rate.

The employer argues that neither the last paragraph in section 309(e), nor section 309(f) applies to seasonal employees because such an interpretation would negate the exclusively seasonal employment formula described under the first paragraph of section 309(e). The employer argues that, if the last paragraph of section 309(e), and section 309(f) are applied, the claimant’s average weekly wage would be equivalent to the average weekly wage of a regular employee who worked all year round. The employer argues that this would be an absurd and unreasonable result, which was not what the legislature intended.

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Bluebook (online)
625 A.2d 194, 155 Pa. Commw. 452, 1993 Pa. Commw. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blaschock-v-workmens-compensation-appeal-board-pacommwct-1993.