Dissenting Opinion by
Judge McGINLEY.I respectfully dissent to the majority’s conclusion that an employment relationship continued from March 13, 1999, to May 26, 1999 when Claimant was off work due to his non-work-related accident. Based on this conclusion, the majority agreed with the Board’s application of Section 309(d.l)1 rather than Section 309(d.2) in calculating Claimant’s AWW.
The majority states:
In both of these cases [Triangle Building Center v. Workers’ Compensation Appeal Board (Linch), 560 Pa. 540, 746 A.2d 1108 (2000) and Norton v. Workers’ Compensation Appeal Board (Norton), 764 A.2d 704 (Pa.Cmwlth.2000) ], just as here, the claimant was not permanently terminated from his employment and was not required to reapply or reinter-view to begin working again. In both cases, the relationship between the employer and employee continued and the employee could return to work when it became possible. Thus, the principle which may be distilled from Triangle *1271and Norton is that if the relationship between the employer and employee is not permanently severed, then the employment relationship continues, and that, for purposes of calculation of AWW under Section 309, a thirteen-week calendar period which includes days not worked (e.g., because of illness, vacation, no work available, etc.) is nevertheless considered a “completed period” for purposes of the calculation of a claimant’s AWW under Section 309(d.l).
Majority Opinion at 1269-70 (emphasis in original). I disagree with the majority’s reliance upon Triangle Building Center and Norton.
Triangle Building Center is distinguishable in that Malcom Linch concurrently worked for two employers and received unemployment benefits from the employer who placed him in layoff status. Our Pennsylvania Supreme Court held that the receipt of unemployment benefits was not dispositive with respect to the AWW determination. Here, Claimant worked for just one employer and did not experience a layoff. Nevertheless, the Pennsylvania Supreme Court’s discussion of legislative intent was instructive: “the baseline figure from which benefits are calculated should reasonably reflect the economic reality of a claimant’s recent pre-injury earning experience, with some benefit of the doubt to be afforded to the claimant in the assessment.” Triangle Building Center, 560 Pa. at 548, 746 A.2d at 1112 (emphasis added).
In Norton, this Court considered different ways to compute AWW and held that Galen Norton (Norton) was “employed” even though the business was shut down on occasion when his employer was on vacation. The distinguishing factor is the WCJ found an employer/employee relationship during the time Norton did not work. Norton, 764 A.2d at 706. In the present controversy, a review of the record reveals there was no specific finding about the employment relationship.
Here, the facts give rise to a unique set of circumstances. As a truck driver, Claimant did not receive fixed wages. The majority acknowledged Claimant’s testimony “that Employer paid him a percentage of each load hauled and that he hauled between three and six loads a week. Claimant estimated that his gross pay averaged between $600.00 and $700.00 per week.” Majority Opinion at 2 (emphasis added).2 The variation in Claimant’s pay depended upon how many loads he hauled.
Claimant was paid for five weeks before he was involved in a non-work accident. He was off for nine weeks, then returned to work and earned three more weekly paychecks until his work injury occurred. The majority reasons that the employment relationship continued because Claimant returned to work after the nine-week hiatus. Majority Opinion at 6. In essence, the majority makes an unwarranted conclusion regarding the employment relationship. Here, there were no indicia of a relationship, particularly no showing of Employer’s control3 over Claimant while he recuperated from his non-work injury.
*1272In the absence of a finding of the employment relationship during the nine-week period from March through May 1999, the Board erred by factoring those weeks into the calculation of Claimant’s AWW. The Board misapplied Section 309(d.l) of the Act to calculate Claimant’s AWW. In sum, the majority improperly accepted the Board’s rationale. I believe Claimant is being unjustifiably punished for being unable to work due to a non-work-related injury, something totally beyond his control and not intended by the General Assembly.
Therefore, I would reverse and remand to the Board with instructions to remand to the WCJ to calculate Claimant’s AWW based upon Section 309(d.2)4 of the Act.
. Pursuant to Section 309(d.l) of the Act, 77 P.S. § 582(d.l):
If the employe 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.
. See also Notes of Testimony, June 5, 2000, at 8-9; Reproduced Record at 71a-72a.
. Four elements are assessed to determine the employment relationship:
(1) the right to select the employee;
(2) the right and power to remove the employee;
(3) the power to direct the manner of performance; and
(4)the potential power to control the employee.
Sunset Golf Course v. Workmen's Compensation Appeal Board (Department of Public Welfare), 141 Pa.Cmwlth.103, 595 A.2d 213, 216 (1991) citing Chichester School District v. Workmen’s Compensation Appeal Board (Fox and Department of Public Welfare), 140 Pa.Cmwlth.224, 592 A.2d 774 (1991).
. Section 309(d.2) of the Act, 77 P.S. § 582(d.2) provides:
If the employe 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 employe was expected to work per week under the terms of employment.