The G. Rebel v. WCAB (Emery World Wide Airlines #150) affirms that when a Claimant is off for a non work-related condition during the year prior to a work injury, but the Claimant did work a complete 13 week quarter prior to the injury, Section 309(d) is used to calculate the AWW. The Court stated the Claimant remained "employed" while she was off for maternity leave.
This case lends itself to Judge Friedman's (joined by Judge McGinley) argument stated in the dissent in Zerby that when one is incapable of performing services for valuable consideration, one cannot be employed. Maternity leave is no more a factor in establishing pre-injury earning experience as a predictor of future earning potential than is a prior work injury or a period of disability for which the Claimant collected sickness and accident benefits. In the cases of Colpetzer, Zerby and Shire the Commonwealth Court put the Claimant's prior AWW or S&A benefit rate in the Section 309(d) calculation.
That was a fair compromise in those cases, but this case demonstrates a determination of whether the Claimant was capable of performing services for valuable consideration when the Claimant had no earnings is more universal in determining future earning potential. In the Dana Corporation cases, one could argue periods of lay off prior to a work injury are relevant to what the Employer's liability for future wage replacement should be. A direction that unemployment compensation should be included in a later AWW calculation would be appropriate for the legislature to consider.
Colpetzer, Zerby and the three Dana Corporation cases, are presently before the Supreme Court.