concurring and dissenting.
While I agree with the result reached by the majority, the remand to consider Section 309(f) of the Act1 in computing Claimant’s wages for compensation purposes, I must disagree with the majority’s view that Claimant, a laborer, was a “seasonal” employee when injured.
First, the construction industry is not a seasonal one. A seasonal occupation is one in which the “vocation” can only be carried out during a certain season of the year and, if the work that Claimant does can be performed by workers generally in every season, such as the dishwasher in Froehly v. Harton, 291 Pa. 157, 139 A. 727 (1927), then that employment, occupation, or “vocation” is not seasonal. In interpreting the language in Section 309 of the Act, “exclusively seasonal and therefore cannot be carried on throughout the year,” our Supreme Court ruled in Froehly that a worker’s occupation, such as the laborer job of Claimant in this case, cannot be treated as seasonal simply because the employer carries out his business on a seasonal basis. “Intermittent” employment, such as caused by layoffs of Claimant in this case, where the employer, as here, continues with other employees throughout all seasons, does not make Claimant’s work seasonal, since intermittent or casual *205work may be carried on at any period of the year, irrespective of the season. Id.
Specifically, the Supreme Court stated in Froehly:
It is not to be denied that the persons who own or control or operate the particular park at which claimant was employed, are, during the period their park is open for business and being operated by them, engaged in a seasonal occupation, one which regularly begins about the first of June and ends approximately September 1st. That period embraces their usual summer amusement season, and incidental to a profitable operation of the business of the park is such labor as washing dishes, cooking for the restaurant and scrubbing floors; all of them are occupations, necessary for the successful management of the resort for usually three months, but also necessary and carried on for pay regularly for the full year in innumerable other places. (Emphasis added.)
Id., 291 Pa. at 164, 139 A. at 730.
The Supreme Court further noted as examples of seasonal occupations, “[h]op picking ... and the gathering of the peach crop are certainly seasonal occupations ... [which] ... the labor and action it entails must be begun and finished within approximately a certain, usual and definite period of the year, — the period or months when hops are ready to be picked and peaches ripe enough to be gathered.” Id., 291 Pa. at 163, 139 A. at 730.
The holding by the Supreme Court in Froehly has never been questioned by this Court or any other court of this Commonwealth.2
Quite aside from the question of what constitutes a “seasonal” employment, I must note that there is no evidence in the record in this case to support the referee’s determination that this work was seasonal. First of all, the *206issue was not raised in Claimant’s petition and answer. In paragraph 11 of the Claim Petition, Claimant stated his wage as “$410.00 per week,” to which the Employer replied simply “denied, proof demanded.” At trial, there was not only no contention or evidence that the work was seasonal, but Claimant testified that he was a laborer for Employer and also was an assistant to a welder, neither of which can possibly be classified as seasonal. Thus, there is no evidence to support the referee’s Finding of Fact No. 13 “that the Claimant was employed in seasonal employment.” R.R. 138a. Noteworthy is the fact that the word “seasonal” does not appear in the record of this case. Consequently, the issue was not raised, and the referee’s source for finding that Claimant’s employment was seasonal remains a mystery. In fact, the only inference possible on the record in this case is contrary to the referee’s finding. The employer’s sole witness, Claimant’s foreman, testified that when laborers were laid off, he continued to be employed as a laborer, so that even by the wrong test for seasonal employment, the seasons when the employer works, if valid, would not be applicable here. R.R. 123a-124a. Moreover, Claimant testified that he worked “sometimes right through the Winter.” R.R. 20a.
It is clear that the policy of an employer to lay off employees when they are not needed does not change a non-seasonal employment into a seasonal one, even if, as to this employer, the layoffs appear to be on a seasonal basis. Froehly.
I note that, while during the trial there was never a contention that Claimant’s employment was in a seasonal occupation, this issue was raised for the first time on appeal to the Board, which affirmed by accepting the referee’s decision.
Finally, while I agree with the majority’s remand order, as noted, I must disagree with the majority’s view that the Legislature did not intend to mandate a high compensation rate resulting from computation of injury date wages under paragraph four of Section 309(e).
*207Discounting the seasonal issue as is heretofore urged that we must, it has long been the settled law in this Commonwealth that the average weekly wage can be no less than the daily wage multiplied by the days in the work week. Thus, in Romig v. Champion Blower & Forge Co., 315 Pa. 97, 172 A. 293 (1934), our Supreme Court reasoned that the Legislature could not have intended to provide for inequalities of compensation for injury disabilities suffered by employees of the same employer, depending on the days worked, when limited by economic conditions. The Court in Romig then concluded:
We are of opinion, after full consideration of the question, that the five and a half day week was intended by the legislature to be the method by which compensation payments are to be fixed, based upon the daily wage. If this method of computation is not applied, injustice and inequalities between employees in the same establishment must result, and there will be no standard of measurement except the number of days worked in the week of the accident.... [stating examples of resulting inequalities] ... We think no such inequalities could have been intended.
Id., 315 Pa. at 104, 172 A. at 296.
This Court had occasion to discuss in Frank M. Sheesley Co. v. Workmen’s Compensation Appeal Board (Brant), 106 Pa.Commonwealth Ct. 227, 526 A.2d 450 (1987), the last paragraph of Section 309(e) of the Act, which appears by enactment of the Legislature to now contain the rule laid down in Romig. In affirming the computation under that paragraph, although Claimant there worked only 5 days in the two quarterly periods preceding his injury, we held that:
the claimant may maximize his weekly wage computation in accordance with the formulation contained in Section 309(e) despite the intermittent nature of his employment in the two quarters preceding his injury. In so holding, we are guided by our Supreme Court’s decision in Romig v. Champion Blower & Forge Co., 315 Pa. 97, 172 A. 293 (1934). In Romig, the claimant worked just two days per *208week during the years of his employment, a restrictive schedule made necessary by economic conditions. Notwithstanding the fact that claimant worked only two days per week, the Court held that a computation of the average weekly wage using the then applicable 5 1/2 day work week standard was mandatory because claimant’s employment was ‘continuous, in that the status of the employer and employe persisted] between the parties even though no work was done on a particular day.’ Id., 315 Pa. at 102, 172 A. at 295.
Id., 106 Pa.Commonwealth Ct. at 230, 526 A.2d at 451.
Moreover, in Sheesley, where seasonal employment was not an issue, but where Claimant’s occupation and employment, as in this case, was subject to layoffs, we concluded that:
as in Romig, the claimant’s employment was continuous, although the number of days actually worked was sporadic.
Id., 106 Pa.Commonwealth Ct. at 230-231, 526 A.2d at 452.
Finally, in Sheesley, we rejected the view accepted by the majority that there was something inappropriate about a computation that resulted in a compensation wage that “exceeds [claimant’s] actual remuneration.”
We are, of course, cognizant of the fact that the claimant’s average weekly wage as computed in accordance with the optional calculation of Section 309(e)[3] exceeds his actual remuneration. This Court has noted in Guttman Oil Co. v. Workmen’s Compensation Appeal Board, 57 Pa.Commonwealth Ct. 486, 426 A.2d 760 (1981), ... that anomalous results may be reached by the literal application of Section 309(e) of the Act but that Romig is dispositive of the issue. ‘Even if that is the case, [we] are *209bound by the provisions of Section 309(e) as interpreted by the Supreme Court.’ As we said in Romig, ‘We must take the law as we find it and apply the rules there set forth.’ Id., 57 Pa.Commonwealth Ct. at 490, 426 A.2d at 762, citing Romig, 315 Pa. at 103, 172 A. at 295. ‘The apparent inequities must be remedied by the legislature, not this court.’ Guttman, 57 Pa.Commonwealth Ct. at 490, 426 A.2d at 762.
There is no ambiguous or restrictive language in Section 309(e) of the Act. The claimant has satisfied the requirement of ‘two completed quarters with the same employer’ as found in that section and is entitled to maximize his average weekly wage for purposes of determining compensation in accordance with the formulation contained therein.
Id., 106 Pa.Commonwealth Ct. at 231-232, 526 A.2d at 452 (footnote added).
Finally, I note that in Guttman, which is cited in the above quotation, this Court applied the last paragraph of Section 309(e) to a claimant who worked four days per week and held that, although the computation by multiplying the daily rate by five (5) resulted in a wage higher than that actually received by the claimant, this result was mandated by the Supreme Court in Romig and unambiguously by the Legislature.
. The Pennsylvania Workmen’s Compensation Act, Act of June 2, 1915 (Act), P.L. 736, as amended, 77 P.S. § 582.
. See American Mutual Insurance Co. v. Workmen’s Compensation Appeal Board (Davenport), 108 Pa.Commonwealth Ct. 345, 530 A.2d 121 (1987); see also Dazely v. Luckenbach Steamship Co., 133 Pa.Superior Ct. 507, 3 A.2d 190 (1938), aff’d, 336 Pa. 432, 9 A.2d 905 (1939).
. The Court in Sheesley was referring to the fourth paragraph of Section 309(e) of the Act and quoted it as follows:
If under clauses (a), (b), (c), (d) and (e) of this section, the amount determined is less than if computed as follows, his [sic] computation shall apply, viz.: Divide the total wages earned by the employe during the last two completed calendar quarters with the same employer by the number of days he worked for such employer during such period multiplied by five.