Truck Driver for Apple Harvest Not Seasonal Employee

As we have discussed previously, the vast majority of folks working in Pennsylvania are covered by the Pennsylvania Workers’ Compensation Act.  However, the calculation of wages, for the purposes of awarding workers’ comp benefits, can vary by the status of an employee.  For example, a “seasonal” employee is treated differently in these calculations than an employee who works the entire year.

The majority of employees in Pennsylvania (those who do not receive the same amount each week, month or year) have their workers’ compensation rate calculated by averaging out the highest three quarters of the year prior to the injury.  The calculation may be different for some employees, such as those who worked less than a year before the injury, or those who are paid by a flat salary (so wages do not vary by the week).  “Seasonal” employees also have a different calculation, as the Commonwealth Court of Pennsylvania recently addressed.

In the matter of Toigo Orchards, LLC and Nationwide Insurance Company v. Workers’ Compensation Appeal Board (Gaffney), the employee drove a truck during apple harvest (September to November), moving pickers and bins around the orchard.  One day, while exiting his truck, a tree branch struck the employee’s eye, eventually causing him to lose sight in the eye.  No work was promised or expected after the apple harvest ended.  The employee was retired (receiving Social Security Retirement benefits) both before and after the time he worked for this employer.

After receiving and evaluating the evidence, a Workers’ Compensation Judge (WCJ) granted the Claim Petition for a specific loss (a loss of use of the eye).  Since the employee was retained for a specific limited time period, and would have no purpose after the apple harvest ended, the WCJ found the employee to be “seasonal.”  As such, the Average Weekly Wage (AWW) was calculated by taking the $1,755.00 the employee earned (working a total of five weeks), and dividing it by 50 (as the PA Workers’ Compensation Act requires for a “seasonal employee”), for a resulting AWW of $35.10.

On appeal, the Workers’ Compensation Appeal Board (WCAB) affirmed the granting of the Claim Petition, but modified the AWW.  In doing so, the WCAB concluded that the WCJ erred in looking at the time period in which the employer operates, rather than examining the “nature of the work.”  The WCAB found the employee was not “seasonal.”  To determine the most fair AWW, the WCAB divided the wages earned over the five weeks by five, for an AWW of $351.00 (a significant difference from that found by the WCJ).

The decision of the WCAB was largely affirmed by the Commonwealth Court of PA (the only part reversed was the award of a “healing period,” which the Court found inapplicable given that the employee “retired” after the injury).  Regarding “seasonal” employment, the Court agreed with the WCAB that the proper inquiry is whether the nature of the work can be done beyond a specific season (which, of course, driving a truck could be).  The Court cited a case where a dishwasher at an amusement park was found not to be a seasonal employee, even though the amusement park was only open during the Summer months (since the work of a dishwasher could be done throughout the year).

Since this case arguably narrows the definition of a “seasonal” employee, the Court notes where a line could be drawn.  Citing to another case, the Court observed that an arena football player, whose contract was for a specific limited period of time, and prohibited him from engaging in off-season play, was a “seasonal” employee.  Given the immense penalty applied to a “seasonal” employee (through the calculation of the AWW), one could argue that the definition should be read quite narrowly.  After all, as the courts are fond of reminding us, the “Act is remedial in nature and is to be liberally construed in favor of the injured employee.”