Tioga Orchards, LLC and Nationwide Ins. Co. v. WCAB (Gaffney)
156 A.3d 407
| Pa. Commw. Ct. | 2017Background
- Claimant (Earl Gaffney), a Florida retiree receiving Social Security, was hired in September 2013 as a temporary tractor driver to move bins during Toigo Orchards’ apple harvest; he worked ~5 weeks before suffering a work-related eye injury on October 8, 2013.
- Employer issued a seasonal-wage-based Corrected Statement of Wages and initially paid temporary compensation; Claimant later filed a claim for specific-loss benefits for total loss of use of his left eye.
- The WCJ found Claimant’s work to be exclusively seasonal, used a seasonal (Section 309(e)) wage calculation, and awarded 275 weeks at $31.59/week.
- The Workers’ Compensation Appeal Board reversed the seasonal classification, applied an alternative AWW calculation (dividing gross wages by weeks actually worked per Burkhart), increased the weekly rate to $315.90, and awarded a 10-week healing period.
- Employer appealed to this Court. The Commonwealth Court affirmed the Board’s non-seasonal classification and Burkhart AWW calculation but reversed the Board’s award of a 10-week healing period.
Issues
| Issue | Claimant's Argument | Employer's Argument | Held |
|---|---|---|---|
| Whether Claimant was an "exclusively seasonal" employee under Section 309(e) | Job was temporary tied to apple harvest; WCJ correctly found seasonal work | Tractor-driving work is capable of year-round performance (itinerant agricultural labor) and thus not "exclusively seasonal" | Not seasonal; Board and court affirmed that inquiry focuses on nature of work, not employer’s operating season |
| Proper method to calculate Average Weekly Wage (AWW) | If seasonal, Section 309(e) or alternatively expected-earnings (Section 309(d.2)) should apply | If not seasonal, Section 309(d.2) inapplicable; where (d.1)/(d.2) don't fit, use alternative calculation dividing gross earnings by weeks worked (Burkhart) | Burkhart alternative calculation affirmed: AWW = $1,755 / 5 weeks = $351.00 (benefit rate $315.90) |
| Whether Section 309(d.2) expected-earnings formula applies (worked <13 weeks) | If classified seasonal, court should instead use expected-earnings (hourly rate × expected weekly hours) to reflect $450 AWW | (Employer) waived if argued; court need not apply (d.2) because employee not seasonal; (Employer) argued (d.2) not appropriate here | Court did not apply (d.2). Issue only reached if seasonal classification adopted; because non-seasonal, (d.2) not used |
| Entitlement to 10-week healing period under Section 306(c)(25) for loss of an eye | Healing period is presumptively due with specific loss; Claimant sought 10 weeks | Employer rebutted presumption: Claimant was retired before and returned to retirement after injury and did not require a healing period | Healing-period award reversed: employer rebutted presumption (claimant already retired and did not require a period of healing to return to work) |
Key Cases Cited
- Froehly v. T.M. Harton Co., 139 A. 727 (Pa. 1927) (seasonal test focuses on nature of the work, not employer’s business season)
- Burkhart Refractory Installation v. Workers’ Compensation Appeal Board (Christ), 896 A.2d 9 (Pa. Cmwlth. 2006) (when (d.1)/(d.2) do not fit, divide total gross wages by weeks actually worked to determine AWW)
- Sun Oil Co. v. Workers’ Compensation Appeal Board (Carroll), 811 A.2d 1131 (Pa. Cmwlth. 2002) (retired claimants who do not need a period to heal are not entitled to statutory healing-period payments)