***Please be advised that our firm is committed to meeting your legal needs while the Coronavirus/COVID-19 pandemic persists. We have taken all measures recommended by the CDC to ensure the safety of our employees and those with whom we may have contact. Our attorneys and staff all have the capabilities to work from home and are encouraged to do so to the extent possible. Nevertheless, you can continue to contact us as usual by phone or email. Our intent is to maintain full law firm operations even if all of our lawyers and staff work from home. Thank you.***

In the finest tradition of the legal profession.

Recent Hire Injured?? Calculation of Average Weekly Wage Where Injured Worker Has Not Been Employed for a Complete 13-Week Period.

On Behalf of | Dec 10, 2015 | Firm News, Workers’ Compensation

The method for calculation of an injured workers’ average weekly wage (AWW) is set forth in §309 of the Workers’ Compensation Act. The Supreme Court noted in the case of Triangle Building Center v. WCAB (Linch), 560 Pa. 540, 746 A.2d 1108 (2000) that the mechanics of the legislative scheme set forth in §309 of the Act demonstrate the General Assembly’s intent to establish a baseline figure from which benefits are calculated that reasonably reflects the reality of the claimant’s pre-injury earning experience as a predictor of his or her future earning potential.

Section 309(d.2) covers “recently hired employees for whom there [is]…no accurate measure of average weekly wage other than taking the existing hourly wage and projecting forward on the basis of the hours of work expected under the employment agreement.”  Reifsnyder v. WCAB (Dana Corp.), 883 A.2d 537 (Pa. 2005).  Section 309(d.2) of the Act provides:

If the employee 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 employee was expected to work per week under the terms of employment.

Unfortunately there are situations which are not covered by the Act.  Not every factual scenario falls within the legislative scheme outlined in §309.

For example, in Hannaberry HVAC v. WCAB (Snyder, Jr.), 575 Pa. 66, 834 A.2d 524 (Pa. 2003), a seriously injured full-time teenage worker, had worked part-time while in school.  The question before the Court was whether the periods of his part-time employment should be included in his AWW.  Recognizing that inclusion of the quarters in which claimant worked part-time after school would result in an underestimation of his actual earning capacity, the Court held that the claimant’s AWW was to be calculated using only the quarter in which he had worked full-time. The Supreme Court noted that §309 “was obviously intended to ensure an accurate calculation of wages in the myriad employment scenarios arising in today’s workplaces,” and was not to be rigidly applied.

Subsequently, in Burkhart Refractory Installation v. WCAB (Christ), 896 A.2d 9 (Pa.Cmwlth. 2006), the claimant did not have an expected number of work hours, and earned wages during only 12 weeks of his 16-week employment.  The Court determined that the correct method of calculating the claimant’s AWW would be to exclude the 4 weeks in which the claimant had no wages, and to divide his gross wages by the 12 weeks in which he actually earned wages. The Court concluded that doing so would fairly assess the claimant’s earnings when he was actually working and would advance the humanitarian purpose of the Act.

A more recent example of a factual situation that does not fit the mold of §309 can be found in the case of Anderson v. WCAB (F.O. Transport and UEGF), 111 A.3d 238 (Pa.Cmwlth. 2015).  In that case, the claimant, who had been employed for only 2½ weeks, did not have a fixed hourly wage and had earned no wages during his first week of employment.  Moreover, his “expected number of weekly hours” could not be determined because he was only to work when needed to do so by employer.  Hence, his AWW could not be calculated under §309(d.2).

Relying upon its decision in Burkhart Refractory, the Court determined that inclusion of the first week – during which claimant earned no wages because employer did not have work available to him – would not “accurately reflect the economic reality of the claimant’s pre-injury ability to generate future earnings.”  As such, the Court based the claimant’s AWW solely upon the wages earned during his second week of employment.

The bottom line is that the calculation of an injured worker’s AWW, especially when dealing with a short-term employee, will be done on a case-by-case basis.  In addressing this situation, the Courts will look to their prior decisions which hold that “§309 is not to be interpreted narrowly or strictly when the result would be an artificially low AWW, unreflective of the reality of a claimant’s pre-injury earnings experience.”  The humanitarian purpose of the Act – which is always to the benefit the employee – will be a determinative factor.

For a confidential analysis of your workers’ compensation issues, or questions about TRC’s workers’ compensation practice area, please contact Margaret M. Hock, Esquire at (412) 316-8647 or [email protected].

Important NoticeThis information is intended for general guidance only, and should not be used as a substitute for specific legal advice.  For specific legal advice applicable to your situation, you should consult an attorney of your choice.  Although believed to be accurate when written, no guarantee of completeness or accuracy to your particular circumstances should be implied.  Laws, regulations, and court decisions in this area change frequently, and you should consult the attorney of your choice for up-to-date information.