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UNSEASONAL EMPLOYMENT IN PENNSYLVANIA
Jeffrey D. Snyder
A recent Pennsylvania Commonwealth Court Decision in Tojio Orchards, LLC v. WCAB (Gaffney), revolved around seasonal employment, as well as addressing an issue of the Claimant’s entitlement to a healing period, in connection with a specific loss claim.
The Claimant had sustained a specific loss of his left eye on October 8, 2013, as a result of his eye contacting a tree limb, while he was driving a tractor.
The employer then issued a Notice of Temporary Compensation Payable (NTCP), and filed a corrected Statement of Wages (SOW). The SOW indicated an average weekly wage of only $35.10, resulting in the compensation rate of $31.59 per week being determined.
Subsequently, the TNCP was revoked, with the appropriate stoppage notice, and a “Medical Only” Notice of Compensation Payable being issued, immediately followed by the filing of a Claim Petition, seeking specific loss benefits for the loss of vision in the left eye.
Before the workers’ compensation judge, the petition proceedings were bifurcated, first addressing the issue of employment status and average weekly wage, to be followed by an adjudication of the medical issues.
The testimony presented to the workers’ compensation judge was that the Claimant was a friend of a principal of the employer. The Claimant and principal had gone to school together, the Claimant had then worked for the employer as an apple picker 30 years before. He was then hired for the apple harvesting season, driving a tractor, and moving bins for apple pickers as they lolligagged from tree to tree.
He was paid $9.00 per hour, with his normal working hours being between 7:00 a.m. and 5:00 p.m., 5 days a week, and he was never promised any extension of employment beyond the apple picking season, ending coincidentally when all the apples were picked.
Previously receiving Social Security Retirement Benefits, as the Claimant had retired about 6 years prior, the retirement benefits were stopped when he began working for the employer, although he then began to receive the retirement benefits after he was injured.
Interestingly enough, or maybe not, the employer had another employee who worked as a tractor driver for the employer year round.
The record then noted that the apple season lasts from September until November, and that the workers never work in the rain. A year round tractor driver position, held by another employee, involved spraying, taking care of the farm, computer duties, and during the harvesting season, hauling apples out of the orchard.
Concluding that the Claimant was engaged in exclusively seasonal employment, the workers’ compensation judge granted the Claim Petition, awarding benefits for seasonal employment, and then awarding specific loss benefits for the loss of vision in the eye, with the specific loss benefits being awarded for 275 weeks, which at $31.59 per week, resulted in an award of $8,687.25.
The Claimant then asked the workers’ compensation judge to enter an Interlocutory Order, in order that the decision could be appealed.
The claim was then appealed to the Appeal Board, with the Claimant arguing that he was not a seasonal worker. The Appeal Board believed that the workers’ compensation judge had imposed too narrow a construction on the Claimant’s employment, and that the judge should have focused on the nature of the work, not the period of time during which the Claimant was working for the employer, citing toFroehly v. TM Harten Company, 139 A.2d 727 (Pa. 1927) (post Andrew Jackson).
The Appeal Board characterized the Claimant’s employment as being that of “itinerant agricultural labor”, observing that employment, although short term, is not necessarily synonymous with seasonal occupation.
Another issue before the Appeal Board was the calculation of the Claimant’s average weekly wage, as the Claimant argued that he had worked less than 13 weeks, and did not have fixed weekly wages, with the Claimant alleging that he was working 50 hours a week, at $9.00 per hour, with the Claimant asserting that his average weekly wage should be $450.00.
The argument made by the Claimant over the calculation of his average weekly wage was rejected by the Appeal Board, determining that the Claimant’s gross earnings over the weeks worked, limited to 5 weeks, only totaled $1,755.00, yielding an average weekly wage of $351.00, and a compensation benefit rate of $315.90.
The Appeal Board also concluded that the Claimant was entitled to a 10 week healing period for a specific loss, modifying the judge’s specific loss award from 275 weeks to 285 weeks.
Shockingly, the employer appealed to the Pennsylvania Commonwealth Court. In response, the Claimant filed a Designation of Additional Issues on Appeal, again challenging the calculation of his average weekly wage.
Citing to Section 309(e) of the Pennsylvania Workers’ Compensation Act, the Commonwealth Court noted that occupations that are exclusively seasonal, meaning they cannot be carried on throughout the year, should result in an average weekly wage that would be 1/50th of the total wages which the Claimant or employee earned from all occupations during the 12 months immediately preceding the injury, and, if, for some reason, that calculation was deemed to be unfair, the calculation could be adjusted.
Noting that the Pennsylvania Workers’ Compensation Act does not specifically define what constitutes an “exclusively seasonal occupation”, the Court noted that the Pennsylvania Supreme Court had held inFroehly that “seasonal 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.”
As further noted by the Pennsylvania Supreme Court in Froehly, “a labor occupations possible of performance and being carried on at any time of the year, or through the entire 12 months, is certainly not seasonal.”
In Froehly, the Claimant had been working as a dishwasher for an amusement park that was only open during the summer, from June to September. The amusement park argued that the Claimant was a seasonal employee, because the park was only open for a few months, with that argument being rejected by the Supreme Court, which found that dishwashing is not a seasonal occupation, even though the employer park was only open for a few months of the year.
An exception to the Froehly rule, involving amateur sports, occurred when the Claimant, while playing for the Arena Football League, inRoss v. WCAB, 702 A.2 1099 (Pa. Cmwlth. 1997), was injured while playing as a football player under a contract. The AFL argued that the employee should be considered a seasonal employee, an argument that the Appeal Board endorsed. The Claimant argued, however, that he was not a seasonal employee, because although the employer (AFL) had a set season, the Claimant could still play football for other teams in other leagues at other times, although the Commonwealth Court disagreed, holding that the Claimant’s employment contract, in Ross, prohibited the Claimant from engaging in off-season play.
In Gaffney, the case under discussion, the Commonwealth Court agreed with the Appeal Board that the Claimant was engaged in “itinerant agricultural labor”, when he was injured, but that his position as a temporary tractor driver for the apple harvest was not seasonal employment under Section 309(e) of the Act.
This holding was supported, in the Commonwealth Court’s opinion, by the fact that the Claimant did not have a contract precluding him from performing services throughout the year for another employer.
As for the Claimant’s average weekly wage, the Court held that the Claimant’s average weekly wage of $351.00, resulting from $1,755.00 being divided by 5 weeks, and further resulting in a disability rate of $315.90 representing “economic reality” with that finding being upheld before the Commonwealth Court.
Lastly, the healing period issue was addressed, with the Commonwealth Court holding that a specific loss award entitles a Claimant to a rebuttal presumption that the specific loss entitles the injured worker to a healing period.
Decided by the Commonwealth Court on March 13, 2017, the Gaffney holding is seasonally appropriate, given that the harvest season is only a few months away.
The obvious take away is that seasonal employment is an extremely limited holding, which will, underFroehly, be limited to occupations that by their very nature are fixed to certain seasons, and are not carried on throughout the year. Conversely, any job that can be performed at any time of the year, will likely not be deemed to be seasonal under the Froehly holding.
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