Harrigan v. Maine Veterans Home

1997 ME 224, 704 A.2d 1215, 1997 Me. LEXIS 224
CourtSupreme Judicial Court of Maine
DecidedNovember 24, 1997
StatusPublished
Cited by1 cases

This text of 1997 ME 224 (Harrigan v. Maine Veterans Home) 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
Harrigan v. Maine Veterans Home, 1997 ME 224, 704 A.2d 1215, 1997 Me. LEXIS 224 (Me. 1997).

Opinion

CLIFFORD, Justice.

[¶ 1] The employer, Maine Veterans Home, appeals from a decision of the Workers’ Compensation Board, granting the employee’s petition for award. Because we agree with Maine Veterans’ contention that the employee’s concurrent employment as a cashier at an amusement park was seasonal and that the Board should have calculated her earnings from that employment pursuant to 39-A M.R.S.A. § 102(4)(C) (Supp.1996) to arrive at her average weekly wage, we vacate the decision of the Board.

[¶2] Donna Harrigan was employed at Maine Veterans Home. Harrigan had a second job as a cashier at Palace Playland, an amusement park in Old Orchard Beach, where she worked roughly 14 weeks a year during the summer season when Palace Play-land was open, from June until Labor Day. Harrigan suffered a work-related injury on August 4, 1994 at Maine Veterans. On Har-rigan’s petition for award, the Board calculated an average weekly wage from Maine Veterans in the amount of $196.84. 39-A M.R.S.A § 102(4)(B) (Supp.1996). Maine Veterans contended before the Board, as it does on appeal, that Harrigan’s concurrent employment at Palace Playland was seasonal within the meaning of 39-A M.R.S.A. § 102(4)(C), and that pursuant to that section her average weekly wage from that employment should be calculated by dividing her total earnings from Palace Playland by 52 weeks in a year, resulting in a concurrent weekly wage of $31.63. The Board rejected Maine Veterans’ contention. Taking Harri-gan’s concurrent wage from Palace Playland of $160 a week,1 and applying 39-A M.R.S.A. [1217]*1217§ 102(4)(E) (Supp.1996), the Board added the two average wages to arrive at a total average weekly wage of $356.84. 39-A M.R.S.A. §§ 102(4)(B) & (E). We granted Maine Veterans’ petition for appellate review pursuant to 39-A M.R.S.A. § 322 (Supp.1996).

I.

[¶ 3] The methods for calculating the “average weekly wage” are set out in 39-A M.R.S.A. §§ 102(4)(A), (B), (C) & (D) (Supp. 1996). Those methods must be analyzed for application in the order that they appear. Frank v. Manpower Temp. Servs., 687 A.2d 623, 625 (Me.1996). The first method applies when an employee has been employed for at least 200 full working days during the immediately preceding year prior to the injury. 39-A M.R.S.A. § 102(4)(A) (Supp.1996). The second method applies to employees who are employed for fewer than 200 days or whose earnings vary from week to week:

B. When the employment or occupation did not continue pursuant to paragraph A for 200 full working days, “average weekly wages, earnings or salary” is determined by dividing the entire amount of wages or salary earned by the injured employee during the 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 those weeks, may not be considered in computations under this paragraph if their inclusion would reduce the average weekly wages, earnings or salary.

39-A M.R.S.A. § 102(4)(B). The third method applies to “seasonal employees:”

C. Notwithstanding paragraphs A and B, the average weekly wage of a seasonal worker is determined by dividing the employee’s total wages, earnings or salary for the prior calendar year by 52.
(1) For the purpose of this paragraph, the term “seasonal worker” does not include any employee who is customarily employed, full time or part time, for more than 26 weeks in a calendar year. The employee need not be employed by the same employer during this period to fall within this exclusion.
(2) Notwithstanding subparagraph (1), the term “seasonal worker” includes, but is not limited to, any employee who is employed directly in agriculture or in the harvesting or initial hauling of forest products.

39-A M.R.S.A. § 102(4)(C) (emphasis added).

[¶4] The fourth method applies when none of the first three methods can be reasonably and fairly applied. 39 M.R.S.A. § 102(4)(D). The concurrent employment provision, subsection E, provides:

When the employee is employed regularly in any week concurrently by 2 or more employers, for one of whom the employee works at one time and for another of whom the employee works at another time, the employee’s average weekly wages are computed as if the wages, earnings or salary received by the employee from all such employers were wages, earnings or salary earned in the employment of the employer for whom the employee was working at the time of the injury.

39-A M.R.S.A. § 102(4)(E).

[¶5] There is no dispute that because Harrigan was not employed at Maine Veterans for 200 working days prior to her injury, subsection B should apply to the calculation of her earnings from Maine Veterans and that her average weekly wage from her employment at Maine Veterans was properly calculated. Harrigan contends, however, and the Board apparently agreed, that subsection E requires the Board to apply the same calculation method to determine the average wage at the concurrent employment as the Board used to determine the wage at the employment responsible for the injury, in Harrigan’s case subsection B, despite the fact that the concurrent earnings were from seasonal employment. Harrigan relies on the provision in subsection E that earnings in the concurrent employment shall be computed as if earned “in the employment of the employer for whom the employee was working at the time of the injury.” 39-A M.R.S.A. § 102(4)(E). We are unpersuaded that the concurrent employment language in section 102(4)(E) operates to negate the ap[1218]*1218plication of section 102(4)(C) to wages earned in seasonal employment.

[¶ 6] As Maine Veterans points out, failing to calculate the average weekly wage from Harrigan’s position at Palace Playland pursuant to section 102(4)(C) results in a highly inflated average weekly wage to Har-rigan,2 and is inconsistent with the purpose of the average weekly wage statute “to arrive at an estimate of the ‘employee’s future earning capacity as fairly as possible.’ ” Frank, 687 A.2d at 625 (citation omitted). The seasonal employment provision was originally enacted with the purpose of preventing seasonal workers from collecting inflated benefits that would otherwise occur if their average weekly wage was calculated as nonseasonal earnings. P.L.1987, eh. 559, pt. B, § 14; Sen. Amend. B. to L.D.1929, No. S-307, Statement of Fact (113th Legis.1987) (the purpose was to “prevent an individual who is injured while working at a seasonal job from collecting benefits year-round at an artificially-enhanced rate”).3

[¶ 7] Contrary to the contentions of Harrigan, and as we stated in Valliere v. William Underwood Co., 537 A.2d 1161

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

Related

Bossie v. School Administrative District No. 24
706 A.2d 578 (Supreme Judicial Court of Maine, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
1997 ME 224, 704 A.2d 1215, 1997 Me. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrigan-v-maine-veterans-home-me-1997.