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Claimant hired for harvest season is itinerant agricultural laborer, not seasonal employee, and entitled to higher average weekly wage and compensation rate.

July 1, 2017
Toigo Orchards, LLC and Nationwide Insurance Company v. WCAB (Gaffney), No. 722 C.D. 2016; Filed Mar. 13, 2017; Judge Cohn-Jubelirer

The Commonwealth Court agreed that the claimant was not a seasonal employee. They concurred with the Appeal Board that the claimant was an itinerant farm laborer, who could travel from state to state to harvest crops or engage in other related work. The court also pointed out that the claimant did not have a contract prohibiting him from finding work as a laborer somewhere else. Additionally, the court agreed with the Board’s average weekly wage calculation given that it fairly addressed the claimant’s earnings when he was actually working and advanced the humanitarian purpose of the Act, as well as the purpose of Section 309, by accurately capturing the claimant’s economic reality. In the court’s view, Section 309(d.1) of the Act did not apply, since that section was intended to govern long-term employment relationships, and Section 309(d.2) did not reflect the claimant’s economic reality. Finally, the court did reverse the Board’s award of a healing period to the claimant because the employer presented evidence that the claimant was retired, and collecting Social Security Retirement Benefits both prior to and after his work with the employer, and had no intention of returning to work after his injury. For this reason, the claimant did not require a period for healing.

 

Case Law Alerts, 3rd Quarter, July 2017

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