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McAdam v. UPS, attorneys and footnotes

Attorney for employee:

Alexander F. McCann, Esq., (orally)
James J. MacAdam, Esq.
MacAdam & McCann, P.A.
236 Gannett Drive
South Portland, ME 04106

Attorneys for employers:

John P. Flynn III, Esq., (orally)			Mark V. Franco, Esq. (orally)
Troubh, Heisler,& Piampiano, P.A.			Thompson & Bowie
P O Box 9711									P O Box 4630
Portland, ME 04104-5011						Portland, ME 04112
(for United Parcel Service)					(for City of Portland)
FOOTNOTES******************************** {1} . UPS appealed the vocational rehabilitation plan and we dismissed the appeal pursuant to 39-A M.R.S.A. § 217(2) (Pamph. 2000), which provides that an order implementing a vocational rehabilitation is "final," and therefore, may not be appealed unless and until the plan is successfully completed and the employer is assessed 180% of the plan's cost. McAdam v. United Parcel Serv., 2000 ME 5, ¶¶ 6-7, 743 A.2d 741, 743-44. {2} . In Ashby v. Rust Eng'g Co., 559 A.2d 774 (Me. 1989), we held that certain payments must be included in the average weekly wage when employee benefits are paid out of bargained- for, dollar-for-dollar deductions from an employee's pay. Id. at 775. See Hincks v. Robert Mitchell Co., 1999 ME 172, ¶¶ 9-12, 740 A.2d 992, 995-96, for a discussion on the Legislature's enactment of a statute reversing the effects of our decision in Ashby. {3} . McAdam had some part-time earnings as a Deering High School hockey coach. {4} . The hearing officer's reference to our opinion in Poole, along with other language in the hearing officer's decision ("McAdam did not suffer a compensable injury in January of 1997") may have evidenced a determination on the part of the hearing officer that McAdam did not suffer any work-related injury while employed by the City. See Poole v. Statler Tissue Corp., 400 A.2d 1067, 1069 (Me. 1979). Because the hearing officer appears to have understood Poole to require proof by UPS that McAdam's employment with the City "independently produced" the shoulder injuries, we must remand for application of subsection 201(4). {5} . UPS also contends that the Board erred in dividing the employee's total wages by fifty-one, the number of weeks that reflect earnings in the employee's wage statement, rather than fifty-two, the number of weeks in the year. Because McAdam neither worked nor received pay in that week, the hearing officer did not err in using the fifty-one weeks. See 39-A M.R.S.A. § 102(4)(B) (Pamph. 2000); Nielsen v. Burnham & Morrill, Inc., 600 A.2d 1111, 1112 (Me. 1991). {6} . Subsection 102(4)(H) states: H. "Average weekly wages, earnings or salary" does not include any fringe or other benefits paid by the employer that continue during the disability. Any fringe or other benefit paid by the employer that does not continue during the disability must be included for purposes of determining an employee's average weekly wage to the extent that the inclusion of the fringe or other benefit will not result in a weekly benefit amount that is greater than 2/3 of the state average weekly wage at the time of the injury. 39-A M.R.S.A. § 102(4)(H) (Pamph. 2000). {7} . Prior to the enactment of title 39-A, Maine was among the majority of jurisdictions that did not permit the inclusion of "fringe benefits" in the calculation of average weekly wage. See 5 Arthur Larson, Larson's Worker's Compensation Law, § 93.01(2)(b) (2000). Former paragraph 2(2)(G) provided: "Average weekly wages, earnings or salary" does not include fringe benefits, including but not limited to employer payments for or contributions to a retirement, pension, health and welfare, life insurance, training, social security or other employee or dependent benefit plan for the employee's or dependent's benefit or any other employee's dependent entitlement. P.L. 1991, ch. 615, § A-20, codified as 39 M.R.S.A. § 2(2)(G) (Supp. 1991) (effective October 17, 1991), repealed by P.L, 1991, ch. 885, § A-7. The nonexclusive list in former subsection 2(2)(G) provides some guidance for interpreting the phrase "fringe benefit" in the former statute. All of the items on the list pertain to employer contributions to the purchase of some specific item falling outside the traditional monetary compensation usually paid to employees as wages, e.g., life insurance, health benefits, a dependent benefit plan, etc. It is also revealing that purely monetary payments to employees such as tips, bonuses, commissions, vacation, and holiday pay, etc., do not appear on the list. {8} . This interpretation is consistent with a common understanding that fringe benefits consist of something other than direct monetary payments to the employee, see 5 Larson, supra note 7, § 93.01(2)(a), and is also consistent with our interpretation of fringe benefits pursuant to former title 39. See, e.g., Nielsen, 600 A.2d at 1112; Freeman v. Co-Hen Egg Co., 430 A.2d 1107, 1108 (Me. 1981); see also Me. W.C.C. Rule 16.8 (1991), replaced by Me. W.C.B. Rule ch. 1, § 5(1). {9} . Some jurisdictions have suggested that bonuses should be included in the average weekly wage when they are tied to the employee's work performance, e.g., hours of service, output produced, or profitability or performance of the employer's business as a whole. See, e.g., Denim Finishers, Inc. v. Baker, 757 S.W.2d 215, 216 (Ky. Ct. App. 1988) (holding that a bonus based on employee output is included in wage); Smith v. State of Louisiana, Dep't of Highways, 370 So. 2d 1295, 1296-98 (La. Ct. App. 1979) (holding that a year-end bonus based on profitability of company is included in wage); Lane Enters., Inc. v. Workmen's Comp. Appeal Bd., 644 A.2d 726, 728 (Pa. 1994) (holding that an annual bonus based on yearly performance is included in wage). Others suggest that, because the average weekly wage calculation is an estimate of an employee's anticipated future earnings in the absence of a work injury, the determination whether to include a bonus in the average weekly wage should hinge upon whether the bonus is part of the employee's "expected" or contractual compensation. See, e.g., Simmonds v. Eastman Kodak Co., 781 P.2d 140, 142 (Colo. Ct. App. 1989) (holding that an annual bonus is part of expected compensation); Orlando v. Schiavo Bros., Inc., 309 A.2d 84, 85-86 (Pa. Commw. Ct. 1973) (holding that a bonus is not included in average weekly wage when no contractual term, express or implied, obligated employer to pay bonus). {10} . In cases where the ordinary calculation methods cannot "reasonably and fairly be applied," the hearing officer may consider the earnings of similarly situated employees. 39-A M.R.S.A. § 102(4)(D) (Pamph. 2000). {11} . Some exceptions exist regarding matters pertaining to previous psychological treatment, substance abuse, or sexually transmitted diseases. Me. W.C.B. Rule ch. 12, § 18. {12} . Under this rule, the employee is required to answer the questions in Appendix II, including the following question: 5. Tell whether you ever injured the same body part before you injured it at work. Tell whether you suffered any earlier injuries to any other parts of the body that have affected the part of your body that you injured at work. Tell whether you had any other medical conditions before you were injured at work. If you have suffered any earlier injuries, or have any pre-existing medical conditions, you must write down when and how each earlier injured [sic] happened and the names and addresses of doctors and hospitals and any other health care providers that you saw because of that earlier injury or because of the earlier medical condition. You must put down when the injury happened and how long you were treated for it. WCB Form, ch. 12, Appendix II. {13} . Pursuant to 39-A M.R.S.A. § 309(2) (Pamph. 2000), the Board is not bound by the rules of evidence, and the Board "may exclude irrelevant or unduly repetitious evidence."

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