Brown v. Thomas O'Connor & Co.

683 A.2d 765, 1996 Me. LEXIS 205
CourtSupreme Judicial Court of Maine
DecidedSeptember 18, 1996
StatusPublished

This text of 683 A.2d 765 (Brown v. Thomas O'Connor & Co.) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Thomas O'Connor & Co., 683 A.2d 765, 1996 Me. LEXIS 205 (Me. 1996).

Opinion

LIPEZ, Justice.

Thomas O’Connor & Co., Inc. appeals from a decision of the Workers’ Compensation Board denying its petition to reduce the determination of the average weekly wage of Daniel W. Brown. O’Connor contends that it was error for the Board to calculate the average weekly wage by dividing Brown’s total earnings from O’Connor by the number of weeks Brown worked for O’Connor, when Brown had worked for other employers during the year. 39 M.R.S.A. § 2(2)(B), repealed and replaced by P.L.1991, eh. 885, §§ A-7, A-8 (effective January 1,1993), codified as 39-A M.R.S.A. § 102(4)(B) (Supp. 1995). O’Connor also appeals from a decision of the Board granting its petition for review and ruling that, because O’Connor failed to present labor market evidence showing the availability of work, Brown’s post-injury work, consisting of six hours per week at five dollars an hour, was prima facie evidence of his earning capacity. 39 M.R.S.A. § 55-B (1989).1 Fecteau v. Rich [766]*766Vale Constr., Inc., 349 A.2d 162, 166 (Me.1976). We affirm the decision of the Board.

Brown suffered a compensable injury on November 5, 1988 while employed by O’Con-nor, and O’Connor accepted responsibility for the injury by memorandum of payment. Pri- or to his injury, Brown worked for several employers for a total of about forty weeks during the calendar year of 1988. Brown worked thirteen weeks for O’Connor during three separate intervals, earning a total of $1,172.63 with an additional $132 a week in fringe benefits. Subsequent to his injury, Brown obtained a part-time cleaning job for six hours a week at a pay rate of five dollars an hour.

In December 1992 O’Connor filed petitions for review of Brown’s incapacity and to reduce the determination of his average weekly wage. The Board initially granted the petition to redetermine Brown’s average weekly wage, calculating an average weekly wage of $461.88 by dividing Brown’s total earnings in 1988, including fringe benefits, by the forty weeks that Brown was employed that year by all employers.2 The Board also concluded that although O’Connor met its burden on its petition for review to show that Brown had regained a work-capacity, it failed to meet its ultimate burden to show that higher paying work was available to Brown. The Board concluded that “although Brown’s work search was weak,” he met his burden of production to show the unavailability of work within his restrictions. The hearing officer also concluded, however, that Brown’s “present six hour a week position does not establish his actual earning capacity under [Fecteau, 349 A.2d at 166]” and that Brown was capable of working forty hours per week at six dollars per hour ($240 per week). Based on an average weekly wage of $461.88, the Board concluded that Brown had a forty-eight percent partial incapacity.

In response to Brown’s motion for findings of fact and conclusions of law, however, the Board denied the employer’s petition to determine the average weekly wage. Stating that the “parties agree that the employee’s average weekly wage is to be determined under [39 M.R.S.A. § 2(2)(B) ],” the Board concluded that Brown’s average weekly wage, including fringe benefits, was $711.77. This latter wage was derived by considering only Brown’s earnings from O’Connor, exclusive of the first week of employment. The Board also revised its determination of Brown’s work incapacity from forty-eight percent to ninety-six percent. Citing our decision in Flanigan v. Ames Dep’t Store, 652 A.2d 83, 86 (Me.1995), the Board concluded that Brown’s six-hour per week post-injury employment was prima facie evidence of his work capacity and that the employer failed to meet its burden to rebut this prima facie evidence with competent evidence to show that work at higher wages was available to Brown within his restrictions. We granted O’Connor’s petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp.1995).

I.

Calculation of an employee’s “average weekly wage” under former title 39 is governed by four alternative methods outlined in sections 2(2)(A), (B), (B-l) & (C) (1989). In this case, the parties agreed that because Brown had been employed for less than 200 full working days prior to his injury, section 2(2)(B) should be applied to determine his weekly wage. Subsection 2(2)(B) provides:

B. In case such employment or occupation had not so continued for said 200 full working days, the “average weekly wages, earnings or salary” shall be determined by dividing the entire amount of wages or salary earned therein by the injured em[767]*767ployee during said immediately preceding year, by the total number of weeks, any part of which the employee worked, during the same period. The week in which employment began, if it began during the year immediately preceding the injury, and the week in which the injury occurred, together with the amounts earned in said weeks, shall not be considered in computations under this paragraph if their inclusion would reduce said “average weekly wages, earnings or salary.”

39 M.R.S.A. § 2(2)(B) (1989). O’Connor contends that it was error for the Board to consider only those weeks that Brown was employed by O’Connor, and to have excluded Brown’s earnings and weeks of employment with other employers. O’Connor further contends that pursuant to the plain language of subsection B, the Board must consider all earnings and weeks of employment for the immediately preceding year that the employee “worked,” including employment with other employers in the same “occupation.”

As Brown contends, we rejected a similar argument in St. Pierre v. St. Regis Paper Co., 386 A.2d 714, 717-18 (Me.1978). In that ease, the employee had been employed for six weeks with his employer at the time of the injury and for twenty weeks with another employer in the immediately preceding year. Id. at 716. We stated that:

The words “such employment or occupation” appearing at the outset of paragraph B, tied as they are to the noncontinuation of “such employment or occupation” “for said 200 full working days,” must have reference back to employment or occupation under paragraph A “on the part of the employer” at the time of the injury.... The patent intent of the statute was to make method A — the average of the employee’s actual wages for at least 200 working days in the prior year — the preferred method if the particular facts permitted; and the statute placed method B — the average of the employee’s actual wages for a shorter period than 200 days — second in the order of preference, if the shorter period’s figures were the best actual figures available. Thus, if method B were applied [the employee’s] “average weekly wages” would be the average of his six weeks’ earnings with [his employer at the time of the injury], dropping out of the average the first and the last weeks if their inclusion would reduce the wage,

Id. at 717-18. O’Connor contends that our construction of subsection B in St. Pierre was erroneous and further, because we concluded that subsection B could not be fairly applied in that case and that subsection C was the applicable provision, our analysis of subsection B was dictum.

Our construction of subsection B in

Free access — add to your briefcase to read the full text and ask questions with AI

Related

St. Pierre v. St. Regis Paper Co.
386 A.2d 714 (Supreme Judicial Court of Maine, 1978)
Fecteau v. Rich Vale Construction, Inc.
349 A.2d 162 (Supreme Judicial Court of Maine, 1975)
Parker v. Bath Iron Works Corp.
644 A.2d 1037 (Supreme Judicial Court of Maine, 1994)
Riley v. Bath Iron Works Corp.
639 A.2d 626 (Supreme Judicial Court of Maine, 1994)
Davis v. Scott Paper Co.
507 A.2d 581 (Supreme Judicial Court of Maine, 1986)
Valliere v. William Underwood Co.
537 A.2d 1161 (Supreme Judicial Court of Maine, 1988)
Flanigan v. Ames Department Store
652 A.2d 83 (Supreme Judicial Court of Maine, 1995)

Cite This Page — Counsel Stack

Bluebook (online)
683 A.2d 765, 1996 Me. LEXIS 205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-thomas-oconnor-co-me-1996.