The Supreme Court granted the Employer's Petition for Allowance of Appeal in Zerby v. WCAB (Reading Anthracite Company) and consolidated it with Colpetzer v. WCAB (Standard Steel). These cases involve the calculation of the AWW when the Claimant sustains a work injury, but was on disability for a prior work injury during the prior year. In such a case, the Employer wants to argue that Section 309(d.1) can't be used for the AWW calculation because the Claimant remained "employed", citing Norton v. WCAB (Norton). In the Section 309(d) calculation, the Employer argues workers' compensation benefits from the prior injury can't be included because they are not "wages."
In Zerby and Colpetzer, The Commonwealth Court applied Section 309(d) but held equity requires that the prior AWW be plugged in during disability weeks.
The Commonwealth Court dissent in Zerby pointed out Mr. Norton was capable of performing work for valuable consideration, and one can not be in an employment relationship if one is incapable of performing services for valuable consideration. Therefore, the dissent would hold 309(d.1) was applicable all along, and Zerby and Colpetzer (and Merkle v. WCAB (Hofmann Industries)) were all wrongly decided.