Section 309.
Wherever in this article the term "wages" is used, it shall be construed to mean
the average weekly wages of the employee, ascertained as follows:
(a) If at the time
of the injury the wages are fixed by the week, the amount so fixed shall be the
average weekly wage;
(b) If at the time
of the injury the wages are fixed by the month, the average weekly wage shall be
the monthly wage so fixed multiplied by twelve and divided by fifty-two;
(c) If at the time
of the injury the wages are fixed by the year, the average weekly wage shall be
the yearly wage so fixed divided by fifty-two;
(d) If at the time
of the injury the wages are fixed by any manner not enumerated in clause (a),
(b) or (c), the average weekly wage shall be calculated by dividing by thirteen
the total wages earned in the employ of the employer in each of the highest
three of the last four consecutive periods of thirteen calendar weeks in the
fifty-two weeks immediately preceding the injury and by averaging the total
amounts earned during these three periods.
(d.1) If the
employee has not been employed by the employer for at least three consecutive
periods of thirteen calendar weeks in the fifty-two weeks immediately preceding
the injury, the average weekly wage shall be calculated by dividing by thirteen
the total wages earned in the employ of the employer for any completed period of
thirteen calendar weeks immediately preceding the injury and by averaging the
total amounts earned during such periods.
(d.2) If the
employee has worked less than a complete period of thirteen calendar weeks and
does not have fixed weekly wages, the average weekly wage shall be the hourly
wage rate multiplied by the number of hours the employee was expected to work
per week under the terms of employment.
(e) Except as
provided in clause (d.1) or (d.2), in occupations which are exclusively seasonal
and therefore cannot be carried on throughout the year, the average weekly wage
shall be taken to be one-fiftieth of the total wages which the employee has
earned from all occupations during the twelve calendar months immediately
preceding the injury, unless it be shown that during such year, by reason of
exceptional causes, such method of computation does not ascertain fairly the
earnings of the employee, in which case the period for calculation shall be
extended so far as to give a basis for the fair ascertainment of his average
weekly earnings.
The terms "average
weekly wage" and "total wages," as used in this section, shall include board and
lodging received from the employer, and gratuities reported to the United States
Internal Revenue Service by or for the employee for Federal income tax purposes,
but such terms shall not include amounts deducted by the employer under the
contract of hiring for labor furnished or paid for by the employer and necessary
for the performance of such contract by the employee, nor shall such terms
include deductions from wages due the employer for rent and supplies necessary
for the employee’s use in the performance of his labor, nor shall such terms
include fringe benefits, including, but not limited to, employer payments for or
contributions to a retirement, pension, health and welfare, life insurance,
social security or any other plan for the benefit of the employee or his
dependents: Provided, however, That the amount of any bonus, incentive or
vacation payment earned on an annual basis shall be excluded from the
calculations under clauses (a) through (d.2). Such payments if any shall instead
be divided by fifty-two and the amount shall be added to the average weekly wage
otherwise calculated under clauses (a) through (d.2).
Where the employee
is working under concurrent contracts with two or more employers, his wages from
all such employers shall be considered as if earned from the employer liable for
compensation.
(309 amended June 24, 1996, P.L.350, No.57)
Compiler's Note: Section 32.1 of Act 57 of 1996, which amended section 309, provided that the amendment of section 309 shall apply only to claims for injuries, which are suffered, on or after the effective date of section 32.1.