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Alexander dissent, footnotes and attorneys

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WATHEN, C.J., with whom CLIFFORD, J. and CALKINS, J., join, dissenting. [¶25] I must respectfully dissent. The Court finds that because Alexander's relationship with the labor market consisted of a "series of discrete, short-term employments which can best be described as 'consistently intermittent,'" subsection B of 39-A M.R.S.A. § 102(4) may result in an inflated average weekly wage and thus the hearing officer should have applied subsection D. To apply subsection D, however, due regard must be given both to Alexander's own previous earnings and to "the earnings of other employees of the same or most similar class working in the same or most similar employment in the same or a neighboring locality." 39-A M.R.S.A. § 102(4)(D); St. Pierre v. St. Regis Paper Co., 386 A.2d 714, 719 (Me. 1978). As the party asserting application of subsection D, PNG bore the burden to provide evidence of the earnings of comparable employees. See Bossie v. Sch. Admin. Dist. No. 24, 1997 ME 233, ¶ 6, 706 A.2d 576. Even if subsection D is the best approach for calculating average weekly wage under these circumstances, I do not agree that PNG carried that burden in this case. Although the parties stipulated to the amount comparable employees earned per week, PNG provided no evidence of the number of weeks per year comparable employees worked. Without that information, the basis for comparison is incomplete and the hearing officer was justified in relying on subsection B. I would affirm.
Attorneys for the employee: James J. MacAdam, Esq. Alexander F. McCann, Esq. (orally) MacAdam McCann 236 Gannett Drive South Portland, Maine 04106 Attorneys for the employer: Thomas Quartararo, Esq. Thomas R. Kelly, Esq. (orally) Robinson, Kriger & McCallum 12 Portland Pier P.O. Box 568 Portland, Maine 04112-0568
FOOTNOTES******************************** {1} . Alexander worked for Gregory & Cook, a subcontractor of PNG. Pursuant to the subcontract, PNG provided workers' compensation insurance for Gregory & Cook employees. There is no dispute that PNG is the "employer" for purposes of workers' compensation liability. {2} . The Hearing Officer awarded "total compensation," but did not specify whether the award was for total incapacity benefits pursuant to 39-A M.R.S.A. § 212 (2001), or 100% partial incapacity benefits pursuant to 39-A M.R.S.A. §§ 213, 214 (2001). Because the Hearing Officer used the phrase "total compensation," we assume that the Hearing Officer awarded benefits for total incapacity pursuant to 39-A M.R.S.A. § 212. {3} . Subsection 102(4)(A) provides, in pertinent part: A. "Average weekly wages, earnings or salary" of an injured employee means the amount that the employee was receiving at the time of the injury for the hours and days constituting a regular full working week in the employment or occupation in which the employee was engaged when injured . . . . In the case of piece workers and other employees whose wages during that year have generally varied from week to week, wages are averaged in accordance with the method provided under paragraph B. 39-A M.R.S.A. § 102(4)(A) (2001). {4} . The "vary from week to week" criterion is derived from the last sentence of subsection 102(4)(A). 39-A M.R.S.A. § 102(4)(A). {5} . Paragraph C provides: 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) (2001). {6} . In Fowler v. First Nat'l Stores, Inc., 416 A.2d 1258, 1260 (Me. 1980), we interpreted the predecessor statute to subsection 102(4), former 39 M.R.S.A. § 2(2) (1989), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8, which contained substantially similar language. {7} . In St. Pierre, 386 A.2d 714, 718-19 (Me. 1978), and Roberts v. Smith, 415 A.2d 1089, 1090 (Me. 1980), we interpreted the predecessor statute to paragraph 102(4)(D), former 39 M.R.S.A. § 2(2)(C) (1989), repealed and replaced by P.L. 1991, ch. 885, §§ A-7, A-8, which contained virtually identical language. {8} . The total incapacity statute provides, in pertinent part: 1. Total incapacity. While the incapacity for work resulting from the injury is total, the employer shall pay the injured employee a weekly compensation equal to 80% of the employee's after-tax average weekly wage, but not more than the maximum benefit under section 211. Compensation must be paid for the duration of the incapacity. Any employee who is able to perform full-time remunerative work in the ordinary competitive labor market in the State, regardless of the availability of such work in and around that employee's community, is not eligible for compensation under this section, but may be eligible for compensation under section 213. . . . . 39-A M.R.S.A. § 212(1) (2001).