PRINTER'S NO. 3782
No. 2604 Session of 2002
INTRODUCED BY LEDERER, McGEEHAN, J. TAYLOR, WASHINGTON, GEORGE,
CRUZ, BISHOP, BELFANTI, SHANER, MELIO, YOUNGBLOOD, KELLER,
HORSEY, HARHAI, J. WILLIAMS AND PALLONE, APRIL 30, 2002
REFERRED TO COMMITTEE ON LABOR RELATIONS, APRIL 30, 2002
AN ACT
1 Amending the act of June 2, 1915 (P.L.736, No.338), entitled, as
2 reenacted and amended, "An act defining the liability of an
3 employer to pay damages for injuries received by an employe
4 in the course of employment; establishing an elective
5 schedule of compensation; providing procedure for the
6 determination of liability and compensation thereunder; and
7 prescribing penalties," further defining "wages."
8 The General Assembly of the Commonwealth of Pennsylvania
9 hereby enacts as follows:
10 Section 1. Section 309 of the act of June 2, 1915 (P.L.736,
11 No.338), known as the Workers' Compensation Act, reenacted and
12 amended June 21, 1939 (P.L.520, No.281) and amended June 24,
13 1996 (P.L.350, No.57), is amended to read:
14 Section 309. Wherever in this article the term "wages" is
15 used, it shall be construed to mean the average weekly wages of
16 the employe, ascertained as follows:
17 (a) If at the time of the injury the wages are fixed by the
18 week, the amount so fixed shall be the average weekly wage;
19 (b) If at the time of the injury the wages are fixed by the
20 month, the average weekly wage shall be the monthly wage so
1 fixed multiplied by twelve and divided by fifty-two;
2 (c) If at the time of the injury the wages are fixed by the
3 year, the average weekly wage shall be the yearly wage so fixed
4 divided by fifty-two;
5 (c.1) If at the time of the injury the wages are fixed by
6 the week, month or year as full-time employment and the wages
7 were fixed by the day, hour or by the output of the employe as
8 part-time employment, in any of the first, second or third
9 period of thirteen consecutive calendar weeks in the fifty-two
10 weeks immediately preceding the injury, the average weekly wage
11 shall be the wage most favorable to the employe, computed by
12 dividing by thirteen the total wages of said employe earned in
13 the employ of the employer in the first, second, third or fourth
14 period of thirteen consecutive calendar weeks in the fifty-two
15 weeks immediately preceding the injury, or in case the employe
16 receives wages, monthly or semi-monthly, by dividing by thirteen
17 the total wages of said employe earned in the employ of the
18 employer in the first, second, third or fourth period of three
19 consecutive calendar months in the year immediately preceding
20 the injury;
21 If the employe has been in the employ of employer less than
22 thirteen calendar weeks (or three calendar months, if the
23 employe receives wages monthly or semi-monthly) immediately
24 preceding the injury, his average weekly wage shall be computed
25 under the foregoing paragraph, taking "total wages" for such
26 purpose to be the amount he would have earned had he been so
27 employed by employer the full thirteen calendar weeks (or three
28 calendar months) immediately preceding the injury and had
29 worked, when work was available to other employes in a similar
30 occupation, unless it be conclusively shown that by reason of
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1 exceptional causes such methods of computation do not ascertain
2 fairly the "total wages" of employe so employed less than
3 thirteen calendar weeks (or three calendar months);
4 (d) If at the time of the injury the wages are fixed by any
5 manner not enumerated in clause (a), (b) [or], (c)[,] or (c.1),
6 the average weekly wage shall be calculated by dividing by
7 thirteen the total wages earned in the employ of the employer in
8 each of the highest three of the last four consecutive periods
9 of thirteen calendar weeks in the fifty-two weeks immediately
10 preceding the injury and by averaging the total amounts earned
11 during these three periods.
12 (d.1) If the employe has not been employed by the employer
13 for at least three consecutive periods of thirteen calendar
14 weeks in the fifty-two weeks immediately preceding the injury,
15 the average weekly wage shall be calculated by dividing by
16 thirteen the total wages earned in the employ of the employer
17 for any completed period of thirteen calendar weeks immediately
18 preceding the injury and by averaging the total amounts earned
19 during such periods.
20 (d.2) If the employe has worked less than a complete period
21 of thirteen calendar weeks and does not have fixed weekly wages,
22 the average weekly wage shall be the hourly wage rate multiplied
23 by the number of hours the employe was expected to work per week
24 under the terms of employment.
25 (e) Except as provided in clause (d.1) or (d.2), in
26 occupations which are exclusively seasonal and therefore cannot
27 be carried on throughout the year, the average weekly wage shall
28 be taken to be one-fiftieth of the total wages which the employe
29 has earned from all occupations during the twelve calendar
30 months immediately preceding the injury, unless it be shown that
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1 during such year, by reason of exceptional causes, such method
2 of computation does not ascertain fairly the earnings of the
3 employe, in which case the period for calculation shall be
4 extended so far as to give a basis for the fair ascertainment of
5 his average weekly earnings.
6 The terms "average weekly wage" and "total wages," as used in
7 this section, shall include board and lodging received from the
8 employer, and gratuities reported to the United States Internal
9 Revenue Service by or for the employe for Federal income tax
10 purposes, but such terms shall not include amounts deducted by
11 the employer under the contract of hiring for labor furnished or
12 paid for by the employer and necessary for the performance of
13 such contract by the employe, nor shall such terms include
14 deductions from wages due the employer for rent and supplies
15 necessary for the employe's use in the performance of his labor,
16 nor shall such terms include fringe benefits, including, but not
17 limited to, employer payments for or contributions to a
18 retirement, pension, health and welfare, life insurance, social
19 security or any other plan for the benefit of the employe or his
20 dependents: Provided, however, That the amount of any bonus,
21 incentive or vacation payment earned on an annual basis shall be
22 excluded from the calculations under clauses (a) through (d.2).
23 Such payments if any shall instead be divided by fifty-two and
24 the amount shall be added to the average weekly wage otherwise
25 calculated under clauses (a) through (d.2).
26 Where the employe is working under concurrent contracts with
27 two or more employers, his wages from all such employers shall
28 be considered as if earned from the employer liable for
29 compensation.
30 Section 2. This act shall take effect in 60 days.
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